<PAGE> 1
As filed with the Securities and Exchange Commission on March 17, 1994
Registration No. 33- ______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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SOUTHTRUST CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 63-0574085
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
420 NORTH 20TH STREET
BIRMINGHAM, ALABAMA 35203
(205) 254-5000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
-------------------------------------
MR. AUBREY D. BARNARD
SOUTHTRUST CORPORATION
420 NORTH 20TH STREET
BIRMINGHAM, ALABAMA 35290
(205) 254-5000
(Name, address, including zip code and telephone number, including area code,
of agent for service)
The Commission is requested to send copies of all communications to:
C. LARIMORE WHITAKER, ESQ. JAMES R. TANENBAUM, ESQ.
BRADLEY, ARANT, ROSE & WHITE STROOCK & STROOCK & LAVAN
1400 PARK PLACE TOWER SEVEN HANOVER SQUARE
BIRMINGHAM, ALABAMA 35203 NEW YORK, NEW YORK 10004-2696
(205) 521-8000 (212) 806-5400
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Approximate date of commencement of proposed sale to the
public: From time to time after this Registration Statement becomes effective
as the Registrant may determine.
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/
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
Title of each class of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered registered(1) offering price per unit(2) aggregate offering price(2) registration fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities $ 200,000,000 100% $200,000,000 $68,965.52
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</TABLE>
(1) Or, if any Debt Securities are issued at an original issue discount, such
greater amount as shall result in net proceeds of $200,000,000 to the
Registrant.
(2) Estimated in accordance with Rule 457 solely for purposes of calculating
the registration fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
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* *
* 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 MARCH 17, 1994
PROSPECTUS
SOUTHTRUST CORPORATION
SouthTrust Corporation (the "Company") from time to time intends to offer
(i) its notes, debentures or other evidences of unsecured indebtedness (the
"Debt Securities") up to an aggregate principal amount of approximately
$200,000,000 or the equivalent thereof in one or more foreign currencies on
terms to be determined at the time of sale. The Debt Securities may be either
senior in priority of payment (the "Senior Securities") or subordinated in
priority of payment (the "Subordinated Securities"). When a particular series of
Debt Securities is offered, a supplement to this Prospectus will be delivered
(the "Prospectus Supplement"), which will set forth the amounts and terms of the
sale. The Debt Securities may be sold for U.S. Dollars, Foreign Currencies or
foreign currency units, and the principal of or any interest on the Debt
Securities may be payable in U.S. Dollars, Foreign Currencies or foreign
currency units.
When Debt Securities are offered, any applicable Prospectus Supplement will
set forth the specific terms such as, where applicable, the specific
designation, aggregate principal amount, denominations and currency or currency
unit for which the Debt Securities may be purchased, the currency or currency
rate in which the principal and any interest is payable, maturity, interest rate
(which may be fixed or variable), and time of payment of interest, if any, terms
for redemption (which may be either at the option of the Company or the holder),
terms for sinking fund payments, initial public offering price, names of and
principal amounts to be purchased by underwriters and compensation of such
underwriters, and information about any listing on a securities exchange of such
Debt Securities as are being offered thereby.
The Debt Securities may be issued in registered or bearer form. In
addition, all or a portion of the Debt Securities of a series may be issuable in
temporary or permanent global form. Debt Securities in bearer form will be
offered and sold only outside the United States to non-U.S. Persons and to
foreign branches of certain United States financial institutions. See
"Limitations on Issuance of Bearer Securities."
The Debt Securities may be sold to underwriters for public offering
pursuant to terms of offering fixed at the time of sale. The name of any
underwriter or agent of the Company involved in the sale of the Debt Securities
will be set forth in any applicable Prospectus Supplement. In addition, the Debt
Securities may be sold by the Company directly or through agents. Any
underwriters, dealers or agents participating in the offering may be deemed
"underwriters" within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"). See "Plan of Distribution."
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 DEBT SECURITIES WILL BE UNSECURED OBLIGATIONS OF THE COMPANY AND WILL
NOT BE OBLIGATIONS OF A BANK INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER FEDERAL AGENCY.
The date of this Prospectus is March , 1994.
<PAGE> 3
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION OTHER THAN AS CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS. THIS PROSPECTUS AND ANY APPLICABLE PROSPECTUS SUPPLEMENT DO NOT
CONSTITUTE AN OFFER OF ANY SECURITIES OTHER THAN THOSE TO WHICH THEY RELATE OR
AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY WITHIN ANY JURISDICTION TO
ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION WITHIN SUCH
JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY APPLICABLE
PROSPECTUS SUPPLEMENT NOR ANY SALES MADE HEREUNDER OR THEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY 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.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (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 can be inspected and copied at the offices of the Commission at Room
1024, Judiciary Plaza, 450 Fifth Street N.W., Washington, D.C. 20549, as well as
at the following regional offices of the Commission: Northwestern Atrium Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511; and Room
1400, 75 Park Place, New York, New York 10007. Copies of such material can be
obtained from the Commission's Public Reference Section, Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 upon payment of prescribed
rates. This Prospectus does not contain all information set forth in the
Registration Statement and Exhibits thereto which the Company has filed with the
Commission under the Securities Act and to which reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1993 is hereby incorporated in this Prospectus by reference.
All reports and definitive proxy or information statements filed by the
Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date of this Prospectus and prior to the termination
of the offering of the Debt Securities offered hereby shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained in a document all or a
portion of which is 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 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 Company will furnish without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of such person, a copy
of any or all of the documents described above, other than exhibits to such
documents (unless such exhibits are specifically incorporated by reference
therein). Written requests should be addressed to Aubrey D. Barnard, SouthTrust
Corporation, SouthTrust Tower, 420 North 20th Street, Birmingham, Alabama 35203.
Telephone requests may be directed to Mr. Barnard at (205) 254-5000.
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<PAGE> 4
SOUTHTRUST CORPORATION
The Company, a multi-bank holding company headquartered in Birmingham,
Alabama, was incorporated under the laws of Delaware in 1968 in order to acquire
all of the outstanding capital stock of SouthTrust Bank of Alabama, N.A., the
oldest predecessor of which was incorporated in 1887. The Company engages in a
full range of banking services through its 39 bank subsidiaries, operating more
than 395 banking offices in Alabama, Florida, Georgia, Tennessee, South Carolina
and North Carolina. The Company through its bank-related subsidiaries also
offers a range of other services, including mortgage banking services, data
processing services, and securities brokerage services. The largest bank
subsidiary of the Company is SouthTrust Bank of Alabama, N.A., Birmingham,
Alabama, which had $4.7 billion in total assets as of December 31, 1993. Of the
Company's approximately $14.7 billion in assets as of December 31, 1993,
approximately $9.1 billion were in Alabama approximately $2.5 billion were in
Georgia and approximately $2.3 billion were in Florida.
As a bank holding company, the Company is subject to regulation and
supervision by the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board") under the Bank Holding Company Act of 1956, as amended
(the "Holding Company Act"). As of December 31, 1993, the capital ratios of the
Company and each banking subsidiary of the Company were in excess of the fully
phased-in risk-based and leverage capital guidelines of the Federal Reserve
Board, the Office of the Comptroller of the Currency (the "Comptroller"), and
the Federal Deposit Insurance Corporation (the "FDIC"), as applicable. The
various bank subsidiaries of the Company are subject to regulation and
supervision by the state banking authorities of the state in which the
subsidiary is organized, the Comptroller, the Federal Reserve Board and/or the
FDIC. The amount of dividends that each subsidiary bank of the Company may pay
is limited by regulation. See "Regulatory Matters."
Following the enactment of Alabama's interstate banking legislation in
1987, the Company has pursued a strategy of acquiring banks and financial
institutions throughout the major growth areas of Florida, Georgia, North
Carolina, South Carolina and Tennessee. The purpose of this expansion is to give
the Company access to metropolitan markets with favorable prospects for growth
of population, per capita income, and business development opportunities. As a
result of this strategy, the total assets of the Company outside of Alabama have
grown to approximately $5.7 billion or 39% of total assets at December 31, 1993.
During 1993, the Company effected acquisitions of 14 financial
institutions, with total assets aggregating $1,260.6 million, and as of the date
of this Prospectus, the Company has executed letters of intent or definitive
agreements relating to the acquisition of six financial institutions, with total
assets aggregating approximately $520 million. As a routine part of its
business, the Company evaluates opportunities to acquire bank holding companies,
banks and other financial institutions. In addition, in the normal course of its
business, the Company receives inquiries and solicitations from the Resolution
Trust Corporation and banks and other financial institutions regarding the
possible acquisition of banks and financial institutions. The Company routinely
reviews and evaluates these inquiries. Thus, at any particular point in time,
including the date of this Prospectus, discussions, and, in some cases
negotiations and due diligence activities, looking toward or culminating in the
execution of preliminary or definitive documents respecting potential
acquisitions may occur or be in progress.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The following are the consolidated ratios of earnings to fixed charges for
each of the periods indicated:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
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1993 1992 1991 1990 1989
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
EARNINGS TO FIXED CHARGES
Excluding Interest on Deposits............................ 4.27 4.23 2.87 1.98 2.09
Including Interest on Deposits............................ 1.56 1.42 1.26 1.18 1.20
</TABLE>
For purposes of computing the consolidated ratios, earnings represent net
income applicable to Common Stock, plus applicable income taxes and fixed
charges less capitalized interest. Fixed charges represent interest expense,
capitalized interest and amortization of debt expense and the interest portion
of rent expense.
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<PAGE> 5
USE OF PROCEEDS
Except as otherwise provided in any applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of any Debt Securities for
general corporate purposes, which may include the reduction of long-term or
short-term indebtedness, investments in, or extensions of credit to, its
subsidiaries, and the financing of capital expenditures or acquisitions. Pending
such use, the net proceeds may be used to make short-term investments. The
precise amounts and the timing of the application of proceeds will depend upon
the funding requirements of the Company and its subsidiaries as well as the
availability of other funds.
REGULATORY MATTERS
The Company is a bank holding company within the meaning of the Holding
Company Act, and is registered with the Federal Reserve Board. The Company's
banking subsidiaries are subject to restrictions under federal law which limit
the transfer of funds by the subsidiary banks to the Company and its nonbanking
subsidiaries, whether in the form of loans, extensions of credit, investments or
asset purchases. Such transfers by any subsidiary bank to the Company or any
non-banking subsidiary are limited in amount to 10% of the subsidiary bank's
capital and surplus and, with respect to the Company and all such nonbanking
subsidiaries, to an aggregate of 20% of such bank's capital and surplus.
Furthermore, such loans and extensions of credit are required to be secured in
specified amounts. The Holding Company Act also prohibits, subject to certain
exceptions, a bank holding company from engaging in or acquiring direct or
indirect control of more than 5% of the voting stock of any company engaged in
non-banking activities. An exception to this prohibition is for activities
expressly found by the Federal Reserve Board to be so closely related to banking
or managing or controlling banks as to be a proper incident thereto.
As a bank holding company, the Company is required to file with the Federal
Reserve Board quarterly and annual reports and such additional information as
the Federal Reserve Board may require. The Federal Reserve Board may also make
examinations of the Company and each of its subsidiaries.
According to Federal Reserve Board policy, bank holding companies are
expected to act as a source of financial strength to each subsidiary bank and to
commit resources to support each subsidiary. This support may be required at
times when a bank holding company may not be able to provide such support.
Furthermore, in the event of a loss suffered or anticipated by the
FDIC -- either as a result of default of a banking or thrift subsidiary of the
Company or related to FDIC assistance provided to a subsidiary in danger of
default -- the other banking subsidiaries of the Company may be assessed for the
FDIC's loss, subject to certain exceptions.
Various federal and state statutory provisions limit the amount of
dividends the subsidiary banks can pay to the Company without regulatory
approval. The approval of the Comptroller is required for any dividend by a
national bank if the total of all dividends declared by the bank in any calendar
year would exceed the total of its net profits, as defined by the Comptroller,
for that year combined with its retained net profits for the preceding two years
less any required transfers to surplus or a fund for the retirement of any
preferred stock. Comparable prohibitions on the declaration of dividends are
imposed by the Alabama Banking Code, the Florida Banking Code, the North
Carolina Banking Code, the South Carolina Banking Code, the Tennessee Banking
Code, and the Financial Institution Code of Georgia. In addition, a national
bank may not pay a dividend in an amount greater than its net profits then on
hand after deducting its loan losses and bad debts. For this purpose, bad debts
are defined to include, generally, the principal amount of loans which are in
arrears with respect to interest by six months or more or are past due as to
payment of principal (in each case to the extent that such debts are in excess
of the reserve for possible credit losses). Under the foregoing laws and
regulations, at December 31, 1993, approximately $269.8 million was available
for payment of dividends to the Company by its bank subsidiaries. The payment of
dividends by any subsidiary bank may also be affected by other factors, such as
the maintenance of adequate capital for such subsidiary bank. Furthermore, the
Comptroller also has the authority to prohibit the payment of dividends by a
national bank when it determines such payment to be an unsafe and unsound
banking practice.
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<PAGE> 6
RISK-BASED CAPITAL GUIDELINES
In January 1989, the Federal Reserve Board issued final risk-based capital
guidelines for bank holding companies. The new guidelines, which became
effective in March 1989, were phased in over four years and as of January 1,
1993, became fully implemented. Under the guidelines, the minimum ratio of
capital to risk-weighted assets (including certain off-balance sheet items, such
as standby letters of credit) is 8%. To be considered a "well capitalized" bank
under the guidelines, a bank must have a total risk-based capital ratio in
excess of 10%. At December 31, 1993, all of the Company's subsidiary banks were
considered "well capitalized." At least half of the total capital is to be
comprised of common equity, retained earnings and a limited amount of perpetual
preferred stock, after subtracting goodwill, and certain other adjustments
("Tier 1 capital"). The remainder may consist of perpetual debt, mandatory
convertible debt securities, a limited amount of subordinated debt, other
preferred stock not qualifying for Tier 1 capital and a limited amount of loan
loss reserves ("Tier 2 capital"). The Company's national banking subsidiaries
are subject to similar capital requirements adopted by the Comptroller, and its
state non-member bank subsidiaries are subject to similar capital requirements
adopted by the FDIC. In addition, the Federal Reserve Board, the Comptroller and
the FDIC have adopted a minimum leverage ratio (Tier 1 capital to total assets)
which must exceed 3% and is driven by the evaluation by and discretion of the
regulator. The rule indicates that the minimum leverage ratio should be at least
1.0 to 2.0% higher for holding companies that do not have the highest rating or
that are undertaking major expansion programs. On December 31, 1993, the Company
had a Tier 1 capital ratio of approximately 8.55%, a total capital ratio of
approximately 12.39% and a leverage ratio of approximately 6.51%.
Under the Financial Institutions Reform, Recovery and Enforcement Act of
1989, failure to meet the capital guidelines could subject a banking institution
to a variety of enforcement remedies available to federal regulatory
authorities, including the termination of deposit insurance by the FDIC.
FIDICIA CAPITAL REQUIREMENTS
In December 1991, the Federal Deposit Insurance Corporation Improvement Act
of 1991 ("FDICIA") became law. FDICIA substantially revises the depositary
institution regulatory and funding provisions of the Federal Deposit Insurance
Act and makes revisions to several other federal banking statutes.
Among other things, FDICIA requires the federal banking regulators to take
prompt corrective action in respect of depositary institutions that do not meet
minimum capital requirements. FDICIA establishes five capital tiers: "well
capitalized," "adequately capitalized," "undercapitalized," "significantly
undercapitalized" and "critically undercapitalized". A depository institution is
well capitalized if it significantly exceeds the minimum level required by
regulation for each relevant capital measure, adequately capitalized if it meets
each such measure, undercapitalized if it fails to meet any such measure,
significantly undercapitalized if it is significantly below such measure and
critically undercapitalized if it fails to meet any critical capital level set
forth in regulations. The critical capital level must be a level of tangible
equity equal to not less than 2% of total tangible assets and not more than 65%
of the minimum leverage ratio to be prescribed by regulation (except to the
extent that 2% would be higher than such 65% level). A depository institution
may be deemed to be in a capitalization category that is lower than is indicated
by its actual capital position if it receives an unsatisfactory examination
rating.
FDICIA generally prohibits a depository institution from making any capital
distribution (including payment of a dividend) or paying any management fee to
its holding company if the depository institution would thereafter be
undercapitalized. Undercapitalized depository institutions became subject to
restrictions on borrowing from the Federal Reserve System, effective as of
December 19, 1993. In addition, undercapitalized depository institutions are
subject to growth limitations and are required to submit capital restoration
plans. A depository institution's holding company must guarantee the capital
plan, up to an amount equal to the lesser of 5% of the depository institution's
assets at the time it becomes undercapitalized or the amount of the capital
deficiency when the institution fails to comply with the plan. The federal
banking agencies may not accept a capital plan without determining, among other
things, that the plan is based on realistic assumptions
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<PAGE> 7
and is likely to succeed in restoring the depository institution's capital. If a
depository fails to submit an acceptable plan, it is treated as if it is
significantly undercapitalized.
Significantly undercapitalized depository institutions may be subject to a
number of requirements and restrictions, including orders to sell sufficient
voting stock to become adequately capitalized, requirements to reduce total
assets and cessation receipt of deposits from correspondent banks. Critically
undercapitalized depository institutions are subject to appointment of a
receiver or conservator.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
applicable Prospectus Supplement may relate. The particular terms of the Debt
Securities offered by any applicable Prospectus Supplement (the "Offered Debt
Securities") and the extent, if any, to which such general provisions may apply
to the Debt Securities so offered will be described in the Prospectus Supplement
relating to such Offered Debt Securities.
The Senior Securities will be issued under an Indenture (the "Senior
Indenture") between the Company and a Trustee to be named in any applicable
Prospectus Supplement (the "Senior Debt Trustee"). The Subordinated Securities
will be issued under an Indenture dated as of May 1, 1992 (the "Subordinated
Indenture") between the Company and Chemical Bank, as Trustee (the "Subordinated
Debt Trustee"). Copies of the Senior Indenture and the Subordinated Indenture
(collectively, the "Indentures") are filed as exhibits to this Registration
Statement. The following summaries of the 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 Indentures, including the
applicable definitions therein of certain terms used in this Prospectus. All
capitalized terms not defined in this Prospectus shall have the definitions
ascribed to them in the Indentures.
GENERAL
The Debt Securities will be unsecured obligations of the Company. The
Indentures do not limit the aggregate principal amount of Debt Securities that
may be issued thereunder and provide that Debt Securities may be issued
thereunder from time to time in one or more series.
Any applicable Prospectus Supplement will describe the following terms of
the Offered Debt Securities: (1) the title of the Offered Debt Securities; (2)
any limit on the aggregate principal amount of the Offered Debt Securities; (3)
the date or dates on which the Offered Debt Securities may be issued and are or
will be payable; (4) the rate or rates per annum (which may be fixed or
variable) at which the Offered Debt Securities will bear interest, if any, or
the method by which such rate or rates shall be determined, and the date or
dates from which such interest, if any, will accrue; (5) the date or dates on
which such interest, if any, on the Offered Debt Securities will be payable and
the Regular Record Dates for any such Interest Payment Dates, and the extent to
which, or the manner in which, any interest payable on a temporary or permanent
global Debt Security ("Global Notes") on an Interest Payment Date will be paid
if other than in the manner described under the heading "Global Notes" below;
(6) each office or agency where, subject to the terms of the relevant Indenture
as described below under "Payment and Paying Agents," the principal of, and
premium, if any, and any interest on the Offered Debt Securities will be payable
and each office or agency where, subject to the terms of the relevant Indenture
as described below under "Denominations, Registration and Transfer", the Offered
Debt Securities may be presented for registration of transfer or exchange and,
if applicable, conversion; (7) the period or periods within which, the price or
prices at which, and the terms and conditions upon which the Offered Debt
Securities may be redeemed at the option of the Company; (8) the obligation or
option, if any, of the Company to redeem, to repay or purchase the Offered Debt
Securities pursuant to any sinking fund or similar provisions or at the option
of a Holder thereof and the period or periods within which, the price or prices
at which and the terms and conditions upon which the Offered Debt Securities
will be redeemed, repaid or purchased pursuant to any such obligation; (9)
whether the Offered Debt Securities are to be issued with original issue
discount within the meaning of Section 1273(a) of the Internal Revenue Code of
1986, as amended (the "Code"), and the regulations thereunder and the amount of
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<PAGE> 8
such discount; (10) provisions, if any, for the defeasance of the Offered Debt
Securities; (11) whether the Offered Debt Securities are to be issued as
Registered Securities or Bearer Securities, or both, and if Bearer Securities
are issued, whether Coupons will be attached thereto, whether Bearer Securities
may be exchanged for Registered Securities and the circumstances and places for
such exchange, if permitted, and any United States tax consequences to foreign
investors in Offered Debt Securities; (12) whether the Offered Debt Securities
are to be issued in whole or in part in the form of one or more temporary or
permanent Global Notes in registered or bearer form and, if so, the identity of
the depositary, if any, for such Global Note or Notes; (13) any provisions for
payment of additional amounts for taxes, and any provisions for redemption in
the event the Company must comply with reporting requirements in respect of an
Offered Debt Security other than a Floating Rate Security ("Affected Security")
or must pay such additional amounts in respect of any Offered Debt Security;
(14) if other than in U.S. Dollars, the Foreign Currency or Currencies in which
the Debt Securities may be denominated and the principal of, and premium, if
any, and any interest on the Offered Debt Securities shall or may be paid and,
if applicable, whether at the election of the Company and/or the Holder, and the
conditions and manner of determining the exchange rate or rates; (15) any index
used to determine the amount of payment of principal of and premium, if any, and
any interest on the Offered Debt Securities; (16) the applicable Overdue Rate,
if any; (17) any addition to, or modification or deletion of, any Events of
Default or covenants provided for with respect to the Offered Debt Securities;
(18) the priority of payment of such Offered Debt Securities; and (19) any other
detailed terms and provisions of the Offered Debt Securities which are not
inconsistent with the relevant Indenture. Any applicable Prospectus Supplement
will also describe any special provisions for the payment of additional amounts
with respect to the Offered Debt Securities and terms relevant to Offered Debt
Securities denominated in a Currency other than U.S. Dollars.
Debt Securities may be issued as Discount Securities to be sold at a
substantial discount below their principal amount. Discount Securities mean any
Debt Securities issued with "original issue discount" within the meaning of
Section 1273(a) of the Code and the regulations thereunder. Special United
States income tax and other considerations applicable to Discount Securities
will be described in any applicable Prospectus Supplement relating thereto.
Discount Securities may provide for the declaration of acceleration of the
Maturity of an amount less than the principal amount thereof upon the occurrence
of an Event of Default and the continuation thereof.
DENOMINATIONS, REGISTRATION AND TRANSFER
Each Debt Security may be denominated in U.S. Dollars or in other
currencies, European Currency Units ("ECU") or other composite currencies (the
"Specified Currency"), all as set forth in any applicable Prospectus Supplement.
See "Currency Risks."
Debt Securities of a series may be issuable as Registered Securities, as
Bearer Securities with or without Coupons attached or as both Registered
Securities and Bearer Securities. Debt Securities of a series may be issuable in
whole or in part in the form of one or more Global Notes, as described below
under "Global Notes." Unless otherwise provided in an applicable Prospectus
Supplement with respect to a series of Debt Securities, the Debt Securities will
be issuable as Registered Securities without Coupons and in denominations (a) if
denominated in U.S. Dollars, of $1,000 or any integral multiple thereof, or (b)
if denominated in a Specified Currency other than U.S. Dollars, as set forth in
the applicable Prospectus Supplement. One or more Global Notes may be issued in
a denomination or aggregate denominations equal to the aggregate principal
amount of Outstanding Debt Securities of the series to be represented by such
Global Note or Notes.
In connection with the sale during the restricted period (referred to under
"Limitations on Issuance of Bearer Securities"), no Bearer Security may be
mailed or otherwise delivered to any location in the United States (as defined
under "Limitations on Issuance of Bearer Securities") and a Bearer Security may
be delivered only if the Person entitled to receive such Bearer Security
furnishes written certification, in the form required by the applicable
Indenture, to the effect that such Bearer Security is not owned by or on behalf
of a U.S. Person (as defined under "Limitations on Issuance of Bearer
Securities"), or, if a beneficial interest in such Bearer Security is owned by
or on behalf of a U.S. Person, that such U.S. Person (i) acquired and holds such
Bearer Securities through a foreign branch of a financial institution, (ii) is a
financial institution
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purchasing for its own accounts and, in the case of either (i) or (ii), such
financial institution agrees to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Code and the regulations thereunder, or (iii) is
a financial institution purchasing for resale during the restricted period only
to non-U.S. Persons outside the United States. See "Global Notes -- Bearer Debt
Securities" and "Limitations on Issuance of Bearer Securities."
Registered Securities of any series (other than a Global Note) will be
exchangeable for other Registered Securities of the same series and a like
aggregate principal amount and tenor of different authorized denominations. In
addition, if so provided in any applicable Prospectus Supplement, Bearer
Securities of any series which is registrable as to principal and interest may,
at the option of the Holder and subject to the terms of the applicable
Indenture, be exchangeable into Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor. Any
Bearer Security surrendered for exchange shall be surrendered with all unmatured
Coupons and all matured Coupons in default except that any Bearer Security
surrendered in exchange for a Registered Security between a Regular Record Date
or a Special Record Date and the relevant date for payment of interest shall be
surrendered without the Coupon relating to such date for payment of interest and
interest will not be payable 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 terms of the applicable Indenture.
Except as provided in an applicable Prospectus Supplement, Bearer Securities
will not be issued in exchange for Registered Securities.
Debt Securities may be presented for exchange as provided above, and
Registered Securities (other than Global Notes) may be presented for
registration of transfer (with the form of transfer endorsed thereon duly
executed), at the office of the Security Registrar or co-Security Registrar
designated by the Company for such purpose with respect to any series of Debt
Securities and referred to in an applicable Prospectus Supplement, without
service charge and upon payment of any taxes and other governmental charges as
described in the applicable Indenture. Such transfer or exchange will be
effected upon the Security Registrar or co-Security Registrar being satisfied
with the documents of title and identity of the person making the request. The
Company has appointed the Senior Debt Trustee and the Subordinated Debt Trustee
(the Senior Debt Trustee and the Subordinated Debt Trustee are herein
collectively referred to as the "Trustees") as Security Registrars in respect of
Debt Securities issued under the Senior Indenture and the Subordinated
Indenture, respectively.
CURRENCY RISKS
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 markets, the imposition or
modification of foreign exchange controls and potential illiquidity. These risks
will vary depending upon the Currency or Currencies involved and will be more
fully described in any applicable Prospectus Supplement.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in any applicable Prospectus Supplement, payment
of principal of, and premium, if any, and any interest on Bearer Securities will
be payable, subject to any applicable laws and regulations, at the offices of
such Paying Agents outside the United States as the Company may designate from
time to time. Unless otherwise indicated in any applicable Prospectus
Supplement, payment of interest on Bearer Securities on any Interest Payment
Date will be made only against surrender of the Coupon relating to such Interest
Payment Date. No payment with respect to any Bearer Security will 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 in the
United States. Payments will not be made in respect of Bearer Securities or
Coupons pursuant to presentation to the Company or its designated Paying Agents
within the United States or the making of any other demand for payment to the
Company or its designated Paying Agents within the United States.
Notwithstanding the foregoing, payment of principal of, and premium, if any, and
interest on Bearer Securities denominated and payable in U.S. Dollars will be
made at the office of the Company's Paying Agent in The City of New York if (but
only if) payment of the full amount thereof in U.S.
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Dollars at all offices or agencies outside the United States is illegal or
effectively precluded by exchange controls or other similar restrictions.
Unless otherwise indicated in any applicable Prospectus Supplement, payment
of principal of, and premium, if any, and any interest on Registered Securities
will be made at the office of such Paying Agent or Paying Agents as the Company
may designate from time to time, except that at the option of the Corporation
payment of any interest may be made (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or
(ii) by wire transfer to an account maintained by the Person entitled thereto.
Unless otherwise indicated in any applicable Prospectus Supplement, payment of
any installment of interest on Registered Securities will be made to the Person
in whose name such Registered Security is registered at the close of business on
the Regular Record Date for such interest.
Unless otherwise indicated in any applicable Prospectus Supplement, the
relevant Trustee will act as the Company's sole Paying Agent through its
principal office in The City of New York, with respect to Offered Debt
Securities which are issuable solely as Registered Securities. Any Paying Agents
outside the United States and other Paying Agents in the United States initially
designated by the Company for the Offered Debt Securities will be named in any
applicable Prospectus Supplement. The Company may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent or
approve a change in the office through which any Paying Agent acts, except that,
if Debt Securities of a series are issuable only as Registered Securities, the
Company will be required to maintain a Paying Agent in each Place of Payment for
such series and, if Debt Securities of a series may be issuable as Bearer
Securities, the Company will be required to maintain (i) a Paying Agent in The
City of New York for payments with respect to any Registered Securities of the
series (and for payments with respect to Bearer Securities of the series in the
circumstances described above, but not otherwise), and (ii) a Paying Agent in a
Place of Payment located outside the United States where Debt Securities of such
series and any Coupons appertaining thereto may be presented and surrendered for
payment; provided that if the Debt Securities of such series are listed on The
Stock Exchange of the United Kingdom and the Republic of Ireland or the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company will maintain a
Paying Agent in London or Luxembourg or any other required city located outside
the United States, as the case may be, for the Debt Securities of such series.
All moneys paid by the Company to the Trustees or a Paying Agent for the
payment of principal of, and premium, if any, and any interest on any Debt
Securities which remain unclaimed at the end of two years after such principal,
premium or interest shall have become due and payable will be repaid to the
Company and the Holder of such Debt Securities or any Coupon will thereafter
look only to the Company for payment thereof.
GLOBAL NOTES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Notes that will be deposited with or on behalf of a
depositary located in the United States (a "U.S. Depositary") or a common
depositary located outside the United States (a "Common Depositary") identified
in any applicable Prospectus Supplement relating to such series. Global Notes
may be issued in either registered or bearer form and in either temporary or
permanent form.
The specific terms of the depositary arrangement with respect to any
Offered Debt Securities of a series will be described in any applicable
Prospectus Supplement relating to such series. The Company anticipates that the
following provisions will apply to all depositary arrangements.
Book-Entry Debt Securities
Unless otherwise specified in any applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Note to be deposited with or
on behalf of a U.S. Depositary will be represented by a Global Note registered
in the name of such depositary or its nominee. Upon the issuance of a Global
Note in registered form, the U.S. Depositary for such Global Note will credit,
on its book-entry registration and transfer system, the respective principal
amounts of the Debt Securities represented by such Global Note to the accounts
of institutions that have accounts with such depositary or its nominee
("Participants"). The
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accounts to be credited shall be designated by the underwriters or agents of
such Debt Securities or by the Company if such Debt Securities are offered and
sold directly by the Company. Ownership of beneficial interests in such Global
Notes will be limited to Participants or persons that may hold interests through
Participants. Ownership of beneficial interests by Participants in such Global
Notes will be shown on, and the transfer of that ownership interest will be
effected only through, records maintained by the U.S. Depositary or its nominee
for such Global Note. Ownership of beneficial interests in Global Notes by
persons that hold through Participants will be shown on, and the transfer of
that ownership interest within such Participant will be effected only through,
records maintained by such Participant. The laws of some jurisdictions require
that certain purchasers of securities take physical delivery of such securities
in definitive form. Such limits and such laws may impair the ability to transfer
beneficial interests in a Global Note.
So long as the U.S. Depositary for a Global Note in registered form, or its
nominee, is the registered owner of such Global Note, such depositary or such
nominee, as the case may be, will be considered the sole owner or Holder of the
Debt Securities represented by such Global Note for all purposes under the
Indenture governing such Debt Securities. Except as set forth below, owners of
beneficial interests in such Global Notes will not be entitled to have Debt
Securities of the series represented by such Global Note registered in their
names, will not receive or be entitled to receive physical delivery of Debt
Securities of such series in definitive form and will not be considered the
owners or Holders thereof under the applicable Indenture.
Payment of principal of, premium, if any, and any interest on Debt
Securities registered in the name of or held by a U.S. Depositary or its nominee
will be made to the U.S. Depositary or its nominee, as the case may be, as the
registered owner or the Holder of the Global Note representing such Debt
Securities. None of the Company, the Trustees, any Paying Agent or the Security
Registrar for such Debt Securities will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests in a Global Note for such Debt Securities or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
The Company expects that the U. S. Depositary for Debt Securities of a
series, upon receipt of any payment of principal, premium or interest in respect
of a permanent Global Note, will credit immediately Participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Note as shown on the records of such
depositary. The Company also expects that payments by Participants to owners of
beneficial interests in such Global Note held through such Participants will be
governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name," and will be the responsibility of such Participants.
A Global Note may not be transferred except as a whole by the U.S.
Depositary for such Global Note to or among a nominee or a successor. If a U.S.
Depositary for Debt Securities of a series is at any time unwilling or unable to
continue as depositary and a successor depositary is not appointed by the
Company within ninety days, the Company will issue Debt Securities in definitive
registered form in exchange for the Global Note or Global Notes representing
such Debt Securities. In addition, the Company may at any time and in its sole
discretion determine not to have any Debt Securities in registered form
represented by one or more Global Notes and, in such event, will issue Debt
Securities in definitive form in exchange for the Global Note or Global Notes
representing such Debt Securities. Further, if the Company so specifies with
respect to Debt Securities of a series, an owner of a beneficial interest in a
Global Note representing Debt Securities of such series may, on terms acceptable
to the Company and the U.S. Depositary, receive individual Debt Securities of
such series in exchange for such beneficial interests, subject to any
limitations in any applicable Prospectus Supplement relating to such Offered
Debt Securities. In any such instance, an owner of a beneficial interest in a
Global Note will be entitled to physical delivery in definitive form of Debt
Securities of the series represented by such Global Note equal in principal
amount to such beneficial interest and to have such Debt Securities registered
in its name.
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Bearer Debt Securities
Unless otherwise specified in any applicable Prospectus Supplement, all
Bearer Securities of a series initially will be issued in the form of a single
temporary Global Note, to be deposited with a Common Depositary in London for
the operator of the Euro-clear System ("Euro-clear Operator") or CEDEL, S.A.
("CEDEL") for credit to the designated accounts. Commencing 40 days after the
issue date of a temporary Global Note, the Debt Securities represented by such
temporary Global Note will be exchangeable for definitive Debt Securities or for
interests in a permanent Global Note, without interest Coupons, representing
Debt Securities having the same interest rate and Stated Maturity but in each
such case only upon written certification in the form and to the effect
described above under "Denominations, Registration and Transfer." The beneficial
owner of a Debt Security represented by a temporary Global Note or a permanent
Global Note, on or after the applicable exchange date and upon 30 days' notice
to the relevant Trustee given through the Euro-clear Operator or CEDEL, may
exchange its interest for definitive Bearer Securities or definitive Registered
Securities of any authorized denomination. No Bearer Security delivered in
exchange for a portion of a temporary Global Note or a permanent Global Note
shall be mailed or otherwise delivered to any location in the United States in
connection with such exchange.
Unless otherwise specified in any applicable Prospectus Supplement,
interest in respect of any portion of a temporary Global Note payable in respect
of an Interest Payment Date occurring prior to the date on which Debt Securities
represented by such temporary Global Note are exchangeable for definitive Debt
Securities or for interests in a permanent Global Note will be paid to each of
the Euro-clear Operator and CEDEL with respect to the portion of the temporary
Global Note held for its account. Each of the Euro-clear Operator and CEDEL,
will undertake in such circumstances to credit such interest received by it in
respect of a temporary Global Note to the respective accounts for which it holds
such temporary Global Note only upon receipt in each case of written
certification in the form and to the effect described above under
"Denominations, Registration and Transfer."
LIMITATIONS ON THE COMPANY AND CERTAIN SUBSIDIARIES
The Indentures prohibit the sale, assignment, transfer or other disposition
of any shares of, or securities convertible into, or options, warrants or rights
to subscribe for or purchase shares of, Voting Stock of a Major Constituent
Bank, and further prohibits a Major Constituent Bank from issuing any shares of,
or securities convertible into, or options, warrants or rights to subscribe for
or purchase shares of, such Voting Stock, if, after giving effect to the
transaction and to the issuance of the maximum number of shares of Voting Stock
issuable upon all such convertible securities, options, warrants or rights, the
Major Constituent Bank would cease to be a Controlled Subsidiary, as provided in
the Indentures. The Indentures further prohibit the merger or consolidation of
any Major Constituent Bank with or into any other corporation, or the other
disposition of all or substantially all of its properties and assets to any
Person, unless, after giving effect to such transaction, its successor in the
merger or consolidation, or the person that acquires all or substantially all of
its assets or properties will remain or become a Controlled Subsidiary;
provided, however, that the Company may sell, assign, transfer or otherwise
dispose of any shares of, or securities convertible into, or options, warrants
or rights to subscribe for or purchase shares of, Voting Stock of a Major
Constituent Bank, (i) in compliance with an order of a court or regulatory
authority of competent jurisdiction; or (ii) where the proceeds, if any, from
such sale, assignment or disposition are, within a reasonable period of time,
invested in any Controlled Subsidiary engaged in the banking business or any
other business in which bank holding companies may legally engage, pursuant to
an understanding or agreement in principal reached at the time of such sale,
assignment or disposition.
SENIOR SECURITIES
The Senior Securities will be direct, unsecured obligations of the Company
and will rank pari passu with all outstanding unsecured, senior indebtedness of
the Company.
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Events of Default
The following are Events of Default under the Senior Indenture with respect
to Senior Securities of any series: (a) default in the payment of any interest
on any Senior Security of that series when it 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 any premium on any Senior Security of such series at its
maturity; (c) default in the deposit of any sinking fund payment, when and as
due by the terms of any Senior Security of that series; (d) failure of the
Company, subject to the terms of the Indenture, to perform any other covenant of
the Company in the Senior Indenture unless the Holders of majority in principal
of outstanding Senior Securities waives compliance with such covenant; (e)
default in the performance, or breach, of any covenant or warranty of the
Company (other than a covenant included in such Indenture solely for the benefit
of a series of Debt Securities other than that series), and continuance of such
default or breach for 90 days after written notice as provided in such
Indenture; (f) certain events involving bankruptcy, insolvency or reorganization
of the Company or a Major Constituent Bank whether voluntary or involuntary; (g)
indebtedness for borrowed money of the Company or any Major Constituent Bank in
excess of $5,000,000 (whether such indebtedness now exists or is hereafter
created) is not paid at final maturity or becomes or is declared due and payable
prior to the date or dates on which such indebtedness would otherwise have
become due and payable as a result of the occurrence of one or more events of
default as defined in any mortgages, indentures, or instruments under which such
indebtedness may have been issued or by which such indebtedness may have been
secured ("acceleration"), and such failure at final maturity to pay or
acceleration or accelerations, as the case may be, shall not be rescinded,
annulled, or cured prior to the expiration of 30 days after the date such
failure to pay at final maturity or acceleration or accelerations occurred; and
(h) any other event of default provided for with respect to Debt Securities of
that series.
If any Event of Default (other than an Event of Default specified in clause
(f) above) occurs and is continuing with respect to Senior Securities of any
series at the time outstanding, either the Senior Debt Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Debt Securities of
that series may declare the principal amount (or, if the Debt Securities of that
series are Discount Securities, such portion of the principal amounts as may be
specified in the terms of that series) of all the Debt Securities of that series
to be due and payable immediately in the Currency in which such Senior
Securities are denominated. If an Event of Default specified in clause (f) above
occurs, such principal amount shall become immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder. At any
time after a declaration of acceleration with respect to Senior Securities of
any series has been made, but before a judgment or decree based on acceleration
has been obtained, the Holders of a majority in aggregate principal amount of
Outstanding Debt Securities of that series may, under certain circumstances,
rescind and annul such acceleration.
The Senior Indenture provides that upon the occurrence of an Event of
Default specified in items (a), (b) or (c) above, the Company will, upon demand
of the Senior Debt Trustee, pay to the Senior Debt Trustee, for the benefit of
the Holder of any such Senior Security, the whole amount then due and payable on
such Senior Securities or matured Coupons for principal, premium, if any, and
interest. The Senior Indenture further provides that if the Company fails to pay
such amount forthwith upon such demand, the Senior Debt Trustee may, among other
things, institute a judicial proceeding for the collection thereof.
SUBORDINATED SECURITIES
The Subordinated Securities will be direct, unsecured obligations of the
Company and will rank pari passu with all outstanding, unsecured, subordinated
indebtedness of the Company.
Subordination
The Subordinated Securities will be subordinate and junior in right of
payment, to the extent set forth in the Subordinated Indenture, to all Senior
Indebtedness (as defined below) of the Company. In the event that the Company
shall default in the payment of any principal of or interest on any Senior
Indebtedness when the same becomes due and payable, whether at maturity or at a
date fixed for prepayment or by declaration or
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otherwise, then, unless and until such default shall have been cured or waived
or shall have ceased to exist, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) will be made or agreed to be made for
principal of or interest on the Subordinated Securities, or in respect of any
redemption, retirement, purchase or other acquisition of any of the Subordinated
Securities. "Senior Indebtedness" means (i) any obligation of the Company to its
creditors whether now outstanding or subsequently incurred, as to which, in the
creating instrument, it is provided that such obligation is Senior Indebtedness,
(ii) the Company's Floating Rate Notes due December 28, 1994 and (iii) the
Company's 9.08% Senior Notes due March 28, 1995.
In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to the Company, its creditors or its property, (ii) any proceeding for the
liquidation, dissolution or other winding up of the Company, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by the Company for the benefit of creditors or (iv) any
other marshalling of the assets of the Company, all Senior Indebtedness
(including any interest thereon accruing after the commencement of any such
proceedings) will be paid in full before any payment or distribution, whether in
cash, securities or other property, is made on account of the principal of or
interest on the Subordinated Securities. In such event, any payment or
distribution on account of the principal of or interest on the Subordinated
Securities, whether in cash, securities or other property (other than securities
of the Company or any other corporation provided for by a plan of reorganization
or readjustment the payment of which is subordinate, at least to the extent
provided in the subordination provisions with respect to the Subordinated
Securities, to the payment of all Senior Indebtedness at the time outstanding,
and to any securities issued in respect thereof under any such plan of
reorganization or readjustment), which would otherwise (but for the
subordination provisions) be payable or deliverable in respect of the
Subordinated Securities, will be paid or delivered directly to the holders of
Senior Indebtedness in accordance with the priorities then existing among such
holders until all Senior Indebtedness (including any interest thereon accruing
after the commencement of any such proceedings) has been paid in full. If any
payment or distribution on account of the principal of or interest on the
Subordinated Securities of any character or any security, whether in cash,
securities or other property (other than securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinate, at least to the extent provided in the
subordination provisions with respect to the Subordinated Securities, to the
payment of all Senior Indebtedness at the time outstanding and to any securities
issued in respect thereof under any such plan of reorganization or
readjustment), shall be received by any Holder of any Subordinated Securities in
contravention of any of the terms of the Subordinated Indenture and before all
the Senior Indebtedness shall have been paid in full, such payment or
distribution or security will be received in trust for the benefit of, and will
be paid over or delivered and transferred to, the holders of the Senior
Indebtedness at the time outstanding in accordance with the priorities then
existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all such Senior
Indebtedness in full. In the event of any such proceeding, after payment in full
of all sums owing with respect to Senior Indebtedness, the Holders of
Subordinated Securities, together with the holders of any obligations of the
Company ranking on a parity with the Subordinated Securities, will be entitled
to be repaid from the remaining assets of the Company the amounts at that time
due and owing on account of unpaid principal of or any premium and interest on
the Subordinated Securities and such other obligations before any payment or
other distribution, whether in cash, property or otherwise, shall be made on
account of any capital stock or obligations of the Company ranking junior to the
Subordinated Securities and such other obligations. By reason of such
subordination, in the event of the insolvency of the Company, holders of Senior
Indebtedness may receive more, ratably, and Holders of the Subordinated
Securities having a claim pursuant to such Subordinated Securities may receive
less, ratably, than the other creditors of the Company. Such subordination will
not prevent the occurrence of an Event of Default in respect of the Subordinated
Securities. See "Events of Default and Limited Rights of Acceleration" for
limitations on the right of acceleration.
Events of Default and Limited Rights of Acceleration
The Subordinated Indenture defines an Event of Default as being certain
events involving the bankruptcy, insolvency or reorganization of the Company
and, if specified in the resolution adopted by the Board of
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Directors with respect to a series, certain other events. If an Event of Default
occurs and is continuing, either the Subordinated Debt Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Subordinated
Securities of that series (or, if the Subordinated Securities of that series are
Discount Securities, such portion of the principal amount as may be specified in
the terms of the series) may declare the principal amount of all the
Subordinated Securities of that series to be due and payable immediately in the
Currency in which such Subordinated Securities are denominated. The foregoing
provision would be subject as to enforcement to the broad equity powers of a
federal bankruptcy court and to the determination by that court of the nature of
the rights of the Holders of the Subordinated Securities. At any time after a
declaration of acceleration with respect to the Subordinated Securities has been
made, but before a judgment or decree based on acceleration has been obtained,
the Holders of a majority in aggregate principal amount of outstanding
Subordinated Securities may, under certain circumstances, rescind and annul such
acceleration.
Any applicable Prospectus Supplement relating to a series of Subordinated
Securities may provide for a right of acceleration of the payment of principal
of the Subordinated Securities, or certain series thereof, upon a default in the
payment of principal or interest or in the performance of any covenant or
agreement in the Subordinated Securities or Subordinated Indenture. If not so
provided, in the event of a default in the payment of principal or accrued
interest or the performance of any covenant or agreement in the Subordinated
Securities or Subordinated Indenture, the Subordinated Debt Trustee may, subject
to certain limitations and conditions, seek to enforce payment of such principal
or accrued interest or the performance of such covenant or agreement.
MISCELLANEOUS RIGHTS AND OBLIGATIONS OF TRUSTEES
The Indentures provide that, subject to the duty of the Trustees during
default to act with the required standard of care, the respective Trustee will
be under no obligation to exercise any of its rights or powers under the
relevant Indenture at the request or direction of any of the Holders, unless
such Holders shall have offered to such Trustee reasonable security or indemnity
against costs, expenses and liabilities which might be incurred by such Trustee.
Subject to such provisions for the indemnification of the Trustees, the Holders
of a majority in aggregate principal amount of the Outstanding Debt Securities
of any series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the relevant Trustee, or
exercising any trust or power conferred on such Trustee, with respect to the
Debt Securities of that series.
The Company is required to furnish the Trustees annually with a statement
as to the performance by the Company of certain of its obligations under the
relevant Indentures and as to any default in such performance and to file with
the relevant Trustee written notice of the occurrence of any default or Event of
Default within ten business days of the Company becoming aware of such default
or Event of Default.
MODIFICATION AND WAIVER
Modifications of and amendments to an Indenture may be made by the Company
and the relevant Trustee with the consent of the Holders of not less than a
majority in principal amount of the Outstanding Debt Securities of each series
affected by such modification or amendment voting separately; provided, however,
that no such modification or amendment may, without the consent of the Holder of
each Outstanding Debt Security affected thereby, (a) change the Stated Maturity
of the principal of, or any installment of principal or interest on, any Debt
Security, (b) reduce the principal amount of, or any premium or interest on, any
Debt Security, (c) reduce the amount of principal of a Discount Security payable
upon acceleration of the Maturity thereof, (d) change the Currency in which
principal of, or any premium or interest on, any Debt Security is denominated or
payable, (e) adversely affect the right of repayment or repurchase, if any, at
the option of the Holder, (f) reduce the amount of or postpone the date fixed
for any payment under any sinking fund or similar provisions, (g) impair the
right to institute suit for the enforcement of any payment on or with respect to
any Debt Security, (h) reduce the percentage in principal amount of Outstanding
Debt Securities of any series, the consent of whose Holders is required for
modification or amendment of the relevant Indenture or for waiver of compliance
with certain provisions of such Indenture or
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for waiver of certain defaults, (i) limit the obligation of the Company to
maintain a paying agency outside the United States for Bearer Securities, (j)
limit the obligation of the Company to redeem an Affected Security, or (k)
modify the provisions of an Indenture relating to the modification of the
Indenture, or the circumstances under which the Holders may waive past defaults
by and certain covenants of the Company.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of each series may, on behalf of all Holders of Debt
Securities of that series, waive, insofar as that series is concerned,
compliance by the Company with certain covenants of the relevant Indenture and
any Event of Default resulting in acceleration of such Debt Securities in
specified circumstances. The Holders of a majority in aggregate principal amount
of the Outstanding Debt Securities of each series may, on behalf of all Holders
of Debt Securities of that series, waive any past default under the relevant
Indenture with respect to Debt Securities of that series, except a default (i)
in the payment of principal, premium, if any, or interest or in the payment of
any sinking fund installment or analogous obligation, or (ii) in respect of a
covenant or provision that cannot be modified or amended without the consent of
the Holders of each Outstanding Debt Security affected thereby.
The Company may, with the consent of its Board of Directors and the
Trustee, change the terms of an Indenture through an indenture supplement
without the consent of any Holders only for the following purposes: (i) to
evidence the succession of another corporation to the Company and the assumption
by any such successor of the covenants of the Company under the relevant
Indenture; (ii) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the Company;
(iii) to add any additional Events of Default; (iv) to add to or change any of
the provisions of the relevant Indenture to facilitate the issuance of Debt
Securities in bearer form; (v) to change or eliminate any of the relevant
Indenture's provisions, provided that there are no Debt Securities outstanding
which are entitled to the benefit of such provision; (vi) to secure the Debt
Securities; (vii) to supplement any of the provisions of the relevant Indenture
to such extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Debt Securities provided that any such action shall
not adversely affect the interests of the Holders of Debt Securities of such
series or any other series of Debt Securities; (viii) to establish the form or
terms of the Debt Securities and Coupons, if any, as permitted by the relevant
Indenture; (ix) to evidence and provide for the acceptance of appointment by a
successor Trustee or facilitate the administration of the trusts under the
relevant Indenture by more than one Trustee; (x) to make any modifications,
amendments or supplements to any provisions herein which modifications,
amendments or supplements are required pursuant to any amendment of the Trust
Indenture Act of 1939 enacted, or any of the rules promulgated thereunder, after
the date hereof; and (xi) to cure any ambiguity, any defect or any inconsistent
provision, provided such action shall not adversely affect the Holders'
interests in any material respect.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Both Indentures provide that the Company shall not consolidate with or
merge into any other corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, and 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 (i) the corporation into which the Company is merged or consolidated or
to which substantially all of the Company's assets or properties are conveyed,
transferred or leased, or the corporation resulting from such merger or
consolidation, expressly assumes the payment of the principal (and premium, if
any) and interest on all the Debt Securities and the performance of every
covenant of the Indentures; (ii) no Event of Default, and no event which after
notice of lapse of time, or both, would become an Event of Default, shall happen
or be continuing upon the occurrence of such transaction; (iii) the corporation
formed by such consolidation or into which the Company shall have been merged or
the Person to which such sale, lease or other disposition shall have been made
is a banking institution or a bank holding company subject to Federal or State
authority; and (iv) the Company delivers to the respective Trustee an Officers'
Certificate and an Opinion of Counsel stating that the consolidation, merger,
conveyance, transfer or lease required in connection with such transaction, and
the supplemental indenture, if any, complies with the Indentures and all
conditions precedent have been complied with.
15
<PAGE> 17
DEFEASANCE
Unless otherwise specified in any applicable Prospectus Supplement with
respect to the Offered Debt Securities of any series, the Company, at its
option, (i) will be discharged from any and all obligations in respect of the
Offered Debt Securities of such series (except for certain obligations to
register the transfer or exchange of Offered Debt Securities of such series, to
replace stolen, lost or mutilated Offered Debt Securities of such series, to
maintain paying agencies and to hold moneys for payment in trust) or (ii) will
not be subject to provisions of the relevant Indenture concerning limitations
upon the disposition of Voting Stock of Major Constituent Banks, and the
consolidation, merger and sale of assets in each case if the Company deposits
with the relevant Trustee, in trust, money or U.S. Government Obligations which
through the payment of interest thereon and principal thereof in accordance with
their terms will provide money in an amount sufficient to pay all the principal,
premium, if any, and interest on the Offered Debt Securities of such series on
the dates such payments are due in accordance with the terms of such Offered
Debt Securities. To exercise either such option, the Company is required, among
other things, to deliver to the relevant Trustee an opinion of counsel to the
effect that (1) the Company has received from or there has been published by the
United States Internal Revenue Service a ruling to the effect that the deposit
and related defeasance would not cause the Holders of the Offered Debt
Securities of such series to recognize income, gain or loss for United States
income tax purposes and (2) if the Offered Debt Securities of such series are
then listed on any national securities exchange, such Offered Debt Securities
would not be delisted from such exchange as a result of the exercise of such
option. Notwithstanding the foregoing, no discharge or defeasance described
above shall affect the obligations, if applicable, of the Company with respect
to the conversion of Debt Securities of a given series into Common Stock.
NOTICES
Except as otherwise provided in the Indentures, notices to Holders of
Bearer Securities will be given by publication at least twice in a daily
newspaper in The City of New York and, if Debt Securities of such series are
then listed on The Stock Exchange of the United Kingdom and the Republic of
Ireland or the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require, in a daily
newspaper in London or Luxembourg or any other required city located outside the
United States, as the case may be, or, if not practicable, elsewhere in Europe.
Notices to Holders of Registered Securities will be given by mail to the address
of such Holders as they appear in the Security Register.
GOVERNING LAW
The Indentures, the Offered Securities and the Coupons, if any, will be
governed by, and construed in accordance with, the laws of the State of New
York. A judgment for money damages by courts in the United States, including a
money judgment based on an obligation expressed in a Foreign Currency,
ordinarily will be rendered only in U.S. Dollars.
REGARDING THE TRUSTEES
The Company and certain subsidiaries from time to time may borrow from the
Trustees, maintain deposit accounts and conduct other banking transactions with
them in the ordinary course of their business.
U.S. FEDERAL TAXATION
The Prospectus Supplement will contain a brief summary of the relevant
United States federal income taxation laws applicable to the Offered Debt
Securities.
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
In compliance with United States federal tax laws and regulations, Bearer
Securities may not be offered or sold during the restricted period (as defined
in Section 1.163-5(c)(2)(i)(D)(7) of the United States
16
<PAGE> 18
Treasury regulations, which is generally the first 40 days after the closing
date, and with respect to unsold allotments, until sold) or delivered in
connection with a sale during the restricted period, directly or indirectly, in
the United States or to U.S. Persons other than to foreign branches of United
States financial institutions (as defined in United States Treasury regulations
Section 1.165(c)(1)(v)) purchasing for their own account or for resale during
the restricted period, which institutions agree in writing to comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Code, and the
regulations thereunder. A sale of Bearer Securities may be made during the
restricted period to a United States Person who acquired and holds the Bearer
Security through a foreign branch of the United States Financial Institution
that agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C)
and the regulations thereunder. Any underwriters, agents and dealers
participating in the offering of Debt Securities, directly or indirectly, must
agree that they will not offer or sell, directly or indirectly, any Bearer
Securities in the United States or to U.S. Persons (other than the financial
institutions described above).
Bearer Securities (other than temporary global securities) and any Coupons
which may be detached therefrom will bear a legend substantially to the
following effect: "Any United States Person who holds this obligation will be
subject to limitations under the United States income tax laws, including the
limitations provided in Sections 165(j) and 1287(a) of the Internal Revenue Code
of 1986". The sections referred to in such legend provide that a U.S. Person
(other than a United States Financial Institution described above or a U.S.
Person holding through such a financial institution) who holds Bearer Securities
or Coupons appertaining thereto will not be allowed to deduct any loss realized
on Bearer Securities and any gain (which might otherwise be characterized as
capital gain) recognized on any sale or disposition (including the receipt of
principal) of such Bearer Securities will be treated as ordinary income.
Purchasers of Bearer Securities also may be affected by certain limitations
under United States tax laws which will be described in an applicable Prospectus
Supplement.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities being offered hereby to
underwriters or through agents or directly to purchasers. Any applicable
Prospectus Supplement will set forth the terms of the offering of the Debt
Securities to which any applicable Prospectus Supplement relates, including the
name or names of any underwriters or agents with whom the Company has entered
into arrangements with respect to the sale of such Debt Securities, the public
offering or purchase price of such Debt Securities and the net proceeds to the
Company from such sale, any underwriting discounts and other items constituting
underwriters' compensation, any discounts and commissions allowed or paid to
dealers, if any, any commissions allowed or paid to agents, and the securities
exchanges, if any, on which the Debt Securities will be listed. Dealer trading
may take place in the Debt Securities, including Debt Securities not listed on
any securities exchange.
The Debt Securities may be purchased to be re-offered to the public through
underwriting syndicates led by one or more managing underwriters, or through one
or more underwriters. The underwriter or underwriters with respect to an
underwritten offering of the Debt Securities will be named in any applicable
Prospectus Supplement relating to such offering and, if an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth on
the cover page of any applicable Prospectus Supplement. Unless otherwise set
forth in any applicable Prospectus Supplement, the obligations of the
underwriters to purchase the Debt Securities will be subject to certain
conditions precedent, and each of the underwriters with respect to a sale of
Debt Securities will be obligated to purchase all of its allocated Debt
Securities if any are purchased. Any initial public offering price and any
discount or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
Debt Securities may be offered and sold by the Company, directly or through
agents designated by the Company from time to time, which agents may be
affiliates of the Company. Any agent involved in the offer and sale of the Debt
Securities in respect of which this Prospectus is being delivered will be named,
and any commissions payable by the Company to such agent will be set forth, in
any applicable Prospectus Supplement. Unless otherwise indicated in any
applicable Prospectus Supplement, any such agent will be acting on a reasonable
effort basis for the period of its appointment.
17
<PAGE> 19
Any underwriter or agent participating in the distribution of the Debt
Securities may be deemed to be an underwriter, as that term is defined in the
Securities Act, of the Debt Securities so offered and sold and any discounts or
commissions received by them from the Company and any profit realized by them on
the sale or resale of the Debt Securities may be deemed to be underwriting
discounts and commissions under the Securities Act.
Underwriters, agents and their controlling persons may be entitled, under
agreements entered into with the Company, to indemnification by the Company
against certain civil liabilities, including liabilities under the Securities
Act.
LEGAL OPINIONS
The legality of the Offered Securities being offered hereby will be passed
upon for the Company by Bradley, Arant, Rose & White, 1400 Park Place Tower,
2001 Park Place, Birmingham, Alabama 35203, and, for the underwriters by Stroock
& Stroock & Lavan, Seven Hanover Square, New York, New York 10004-2696. As of
December 31, 1993, the partners and associates of Bradley, Arant, Rose & White
beneficially owned approximately 1,420,000 shares of Common Stock of the
Company.
EXPERTS
The consolidated financial statements of the Company and its subsidiaries
incorporated by reference in this Prospectus and elsewhere in this Registration
Statement have been audited by Arthur Andersen & Co., independent public
accountants, for the periods indicated in their reports thereon, and have been
incorporated herein by reference in reliance upon the authority of said firm as
experts in giving said reports.
18
<PAGE> 20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an estimate, subject to future contingencies,
of the expenses to be incurred by the registrant in connection with the
issuance and distribution of securities being registered:
<TABLE>
<S> <C>
Registration Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 68,965.52
* Legal Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50,000.00
* Accounting Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,000.00
* Blue Sky Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,000.00
* Printing and Engraving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30,000.00
* Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,000.00
-------------
* Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 160,965.52
=============
</TABLE>
- --------------------------------
*Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Restated Certificate of Incorporation and the Bylaws of
the Corporation provide that the Corporation shall indemnify its officers,
directors, employees, and agents to the extent permitted by the General
Corporation Law of Delaware, which permits a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit, or proceeding by reason of the
fact that he is or was a director, officer, employee, or agent of the
corporation, against expenses (including attorney's fees), judgments, fines,
and settlements incurred by him in connection with any such suit or proceeding,
if he acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interest of the corporation, and, in the case of a
derivative action on behalf of the Corporation, the Corporation shall indemnify
such persons only against expenses and then only if he not be adjudged to be
liable for negligence or misconduct. The Corporation also maintains insurance
coverage relating to certain liabilities of directors and officers.
ITEM 16. LIST OF EXHIBITS
The following Exhibits are filed as part of this Registration
Statement:
1 - Form of Underwriting Agreement - Debt Securities.
*4(a) - Indenture, dated as of May 1, 1987 between
SouthTrust Corporation and National Westminster
Bank USA, which was filed as Exhibit 4(a) to
SouthTrust Corporation's Registration Statement
on Form S-3 (Registration No. 33-13637).
4(b)(i) - Form of Senior Indenture.
II-1
<PAGE> 21
4(b)(ii) - Subordinated Indenture dated as of May 1,
1992, between SouthTrust Corporation and
Chemical Bank, as Trustee.
5 - Opinion of Bradley, Arant, Rose & White.
12 - Computation of Ratios of Earnings to Fixed
Charges.
23(a) - Consent of Bradley, Arant, Rose & White
(included in Exhibit 5).
23(b) - Consent of Arthur Andersen & Co.
24 - Powers of Attorney.
25 - Statement of Eligibility and Qualification
of Trustee under the Trust Indenture Act of
1939 on Form T-1.
- --------------------------------------
* Incorporated by Reference.
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;
(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)(1)(i) and (a)(1)(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 section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
II-2
<PAGE> 22
(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 the
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
The undersigned registrant hereby 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 (and, where applicable, each
filing of the registrant's employee benefit plan's annual report pursuant to
section 15(d) of the Securities 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.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described under 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> 23
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
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Birmingham, State of Alabama, on March 16, 1994.
SOUTHTRUST CORPORATION
/s/ W.D. MALONE, JR.
-----------------------------------------
W.D. Malone, Jr.
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ WALLACE D. MALONE, JR. Chairman, Chief Executive March 16, 1994
- ------------------------------------------ Officer, Director
Wallace D. Malone, Jr.
/s/ ROY W. GILBERT, JR. President, Chief Operating March 16, 1994
- ------------------------------------------ Officer, Director
Roy W. Gilbert, Jr.
/s/ AUBREY D. BARNARD Secretary, Treasurer and March 16, 1994
- ------------------------------------------ Controller (Principal
Aubrey D. Barnard Accounting and
Financial Officer)
* Director March 16, 1994
- ----------------------------------
Bill L. Harbert
Director March 16, 1994
- ----------------------------------
William C. Hulsey
Director March 16, 1994
- ----------------------------------
Allen J. Keesler, Jr.
* Director March 16, 1994
- ----------------------------------
John M. Bradford
* Director March 16, 1994
- ----------------------------------
T. W. Mitchell
</TABLE>
II-4
<PAGE> 24
<TABLE>
<S> <C> <C>
Director March 16, 1994
- ----------------------------------
Herbert Stockham
* Director March 16, 1994
- ----------------------------------
Charles G. Taylor
* Director March 16, 1994
- ----------------------------------
W. Kendrick Upchurch, Jr.
*By /s/ WILLIAM L. PRATER March 16, 1994
- ----------------------------------
William L. Prater
Attorney-in-fact
</TABLE>
II-5
<PAGE> 25
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
1 - Form of Underwriting Agreement - Debt Securities.
*4(a) - Indenture, dated as of May 1, 1987 between SouthTrust Corporation and National
Westminster Bank USA, which was filed as Exhibit 4(a) to SouthTrust
Corporation's Registration Statement on Form S-3 (Registration No. 33-13637).
4(b)(i) - Form of Senior Indenture.
4(b)(ii) - Subordinated Indenture dated as of May 1, 1992, between SouthTrust Corporation
and Chemical Bank, as Trustee.
5 - Opinion of Bradley, Arant, Rose & White.
12 - Computation of Ratios of Earnings to Fixed Charges.
23(a) - Consent of Bradley, Arant, Rose & White (included in Exhibit 5).
23(b) - Consent of Arthur Andersen & Co.
24 - Powers of Attorney.
25 - Statement of Eligibility and Qualification of Trustee under
the Trust Indenture Act of 1939 on Form T-1.
</TABLE>
___________________________________________
* Incorporated by Reference.
<PAGE> 1
UNDERWRITING AGREEMENT
_______ __, 199_
SouthTrust Corporation
420 North 20th Street
34th Floor, SouthTrust Tower
Birmingham, Alabama 35203
Dear Sirs:
We (the "Underwriters") understand that SouthTrust
Corporation, a Delaware corporation (the "Company") proposes to issue and sell
its notes, debentures or evidences of unsecured indebtedness up to an aggregate
amount of $_____________ (the "Underwritten Securities"). The terms of the
Underwritten Securities are set forth in the Registration Statement on Form S-3
(Registration No. 33-________) and Basic Prospectus (as defined in the
provisions incorporated herein by reference), as supplemented by any Prospectus
Supplement dated subsequent to the date of the Basic Prospectus (the Basic
Prospectus and any Prospectus Supplement being hereinafter referred to as the
"Prospectus").
All the provisions (including defined terms) contained in the
document entitled SouthTrust Corporation Debt Securities Underwriting Agreement
Standard Provisions (March 1994) (the "Standard Provisions") heretofore
delivered by the Underwriters, receipt of which is hereby acknowledged, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Underwriting Agreement (the "Agreement") to the same extent as if
such provisions had been set forth in full herein; provided, however, that
notwithstanding the Standard Provisions, payment made to the Company on the
Delivery Date by the Underwriters for the Underwritten Securities shall be by
check in New York Clearing House (next day) funds. The Delivery Date referred
to in Section 4 of the Standard Provisions shall be _______ __, 199_.
Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Company hereby agrees to sell and the
Underwriters agree to purchase, severally and not jointly, the Underwritten
Securities at a price equal to ______% of their principal amount plus accrued
interest or accrued amortization of original issue discount, if any, from
______ __, 199_, to the date of payment and delivery, in the amounts set forth
below opposite their names:
1
<PAGE> 2
<TABLE>
<CAPTION>
Principal Amount
of Securities To
Name Be Purchased
- ---- ----------------
<S> <C>
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
Total . . . . . . . . . . $
================
</TABLE>
The Underwriters will offer the Underwritten
Securities for sale upon the terms and conditions set forth in the Prospectus.
The Underwriters will pay for the Underwritten
Securities at the time and place and in the manner set forth in the provisions
incorporated herein by reference.
Please confirm your agreement by having an authorized
officer sign a copy of this Agreement in the space set forth below and
returning the signed copy to us.
Very truly yours,
By [Lead Underwriter]
By
--------------------------------------
Acting on behalf of itself and
the Underwriters named above
Accepted:
SOUTHTRUST CORPORATION
By
-------------------
Its
----------------
2
<PAGE> 3
SOUTHTRUST CORPORATION
Debt Securities
Underwriting Agreement
Standard Provisions
(March 1994)
________________________________________
SOUTHTRUST CORPORATION, a Delaware corporation (the
"Company"), may from time to time enter into one or more underwriting
agreements that provide for the sale of its debt securities registered under
the registration statement referred to in Paragraph 1 (a) hereof (the
"Securities"). The Securities will be issued under either (i) a Senior Debt
Indenture to be dated contemporaneously with the first issuance thereunder of
Senior Debt between the Company and Chemical Bank, as Trustee or (ii) a
Subordinated Debt Indenture dated as of May 1, 1992, between the Company and
Chemical Bank, as Trustee (each an "Indenture"). The Indenture under which the
Securities are issued and the Trustee thereunder will be identified in any
applicable Prospectus (as herein defined) and all references herein to
"Indenture" and "Trustee" shall be deemed to mean the Indenture (together with
any amendments or supplemental indentures thereto) and the Trustee so
identified in the Prospectus. The Securities will have varying maturities,
interest rates, interest payment dates, redemption provisions, conversion
provisions, selling prices and other terms, with all such terms for any
particular offering to be determined at the time of sale. The standard
provisions set forth herein may be incorporated by reference in any
underwriting agreement relating to an offering of the Securities (an
"Underwriting Agreement"). The Underwriting Agreement, including the
provisions incorporated therein by reference, is herein sometimes referred to
as "this Agreement." Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Securities
involved in any such offering are hereinafter referred to as the "Underwritten
Securities," the firms which agree to purchase the same are hereinafter
referred to as the "Underwriters" of such Underwritten Securities and the
representatives of the Underwriters named in the Underwriting Agreement are
hereinafter referred to as the "Managing Underwriters." The Underwritten
Securities to be purchased from the Company on the Delivery Date (as
hereinafter defined) are called the "Immediate Delivery Underwritten
Securities."
1. The Company represents and warrants that:
(a) A registration statement on Form S-3
(Registration No. 33-________) with respect to the Securities,
more particularly described in the Underwriting Agreement into
which the standard provisions set forth herein are
incorporated by reference, has been prepared by the Company in
conformity with the requirements of the Securities Act of
1933, as amended (the "Act"), and the rules and regulations
(the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder and has become
effective. As used in this Agreement, "Registration
Statement" means that registration statement, as amended or
supplemented at the date of this Agreement, including the
material incorporated therein by reference and exhibits and
financial
1
<PAGE> 4
statements, and, in the event any post-effective amendment
thereto becomes effective prior to the Delivery Date (as
hereinafter defined), shall also mean such registration
statement as so amended; "Basic Prospectus" means the
prospectus (including all documents incorporated therein by
reference) included in the Registration Statement at the
effective date; "Prospectus" means the Basic Prospectus,
together with any prospectus amendment or supplement, whether
in preliminary or final form (including in each case all
documents incorporated therein by reference), specifically
relating to the Underwritten Securities, as filed with, or
mailed for filing to, the Commission pursuant to paragraph (b)
or (c) of Rule 424 of the Rules and Regulations (each such
Prospectus in preliminary form being hereinafter referred to
as a "Preliminary Prospectus"); and "effective date" of the
Registration Statement means each date on which the
Registration Statement and any post-effective amendment or
amendments thereto (including the date of filing of the
Company's Annual Report on Form 10-K) became or become
effective. Any reference herein to the Registration
Statement, a Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended,
(the "Exchange Act") on or before the effective date of the
Registration Statement, or the date of such Preliminary
Prospectus or the Prospectus, as the case may be; and any
reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the filing of any document under the
Exchange Act after the effective date of the Registration
Statement, or the date of such Preliminary Prospectus or the
Prospectus, as the case may be, deemed to be incorporated
therein by reference. The Commission has not issued any order
preventing or suspending the use of the Prospectus.
(b) The Registration Statement and the Prospectus
conform, and each amendment or supplement to the Registration
Statement or the Prospectus prior to the termination of the
offering of the Underwritten Securities will conform, in all
material respects with the requirements of the Act and the
Rules and Regulations and the Exchange Act, and the rules and
regulations of the Commission thereunder; and the Registration
Statement and the Prospectus do not, and any amendment or
supplement thereto prior to the termination of the offering of
the Underwritten Securities 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 provided that this
representation and warranty shall not apply to statements or
omissions made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter
expressly for use therein.
(c) The documents filed with the Commission
pursuant to the Exchange Act and incorporated by reference
into the Prospectus conform, and any further documents so
filed and incorporated by reference into the Prospectus or any
amendment or supplement to the Prospectus prior to the
termination of the offering of the Underwritten Securities,
when filed with the Commission pursuant to the Exchange Act,
will conform, with the applicable requirements of the Exchange
Act and the rules and regulations thereunder; and none of such
documents contains or will, when so filed, contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the
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<PAGE> 5
statements therein, in the light of the circumstances under
which they were made, not misleading.
2. If the Prospectus or any Prospectus
Supplement so provides, the Underwriters may solicit offers to purchase
Underwritten Securities by institutional investors for delayed delivery
pursuant to contracts substantially in the form of Exhibit A attached hereto,
with such changes therein as the Company may approve (the "Delayed Delivery
Contracts"). The Company shall have the right, in its sole discretion, to
approve or disapprove each such institutional investor.
The Company will pay to the Managing Underwriters for
the account of the Underwriters, contemporaneously with the purchase on the
Delivery Date by the Underwriters of the Immediate Delivery Underwritten
Securities pursuant to this Agreement, the compensation specified herein for
arranging the sale of Underwritten Securities pursuant to Delayed Delivery
Contracts, which shall be equal to a percentage of the aggregate principal
amount of the Underwritten Securities for which Delayed Delivery Contracts have
been made (the "Delayed Delivery Underwritten Securities"). The Underwriters
shall have no responsibility in respect of the validity or performance of the
Delayed Delivery Contracts.
3. The Company shall not be obligated to deliver
any Underwritten Securities except upon payment for all the Immediate Delivery
Underwritten Securities to be purchased hereunder as hereinafter provided.
4. The Immediate Delivery Underwritten
Securities shall be delivered in temporary or definitive form by the Company to
the Managing Underwriters for the account of the Underwriters, against payment
of the purchase price therefor by each Underwriter or on its behalf by wire
transfer or credit to the Company's bank account maintained at Chemical Bank,
at 10:00 a.m., New York City time, on the fifth business day following the date
of this Agreement or at such other time and date as the Managing Underwriters
and the Company may agree, such time and date being herein called the "Delivery
Date". The Immediate Delivery Underwritten Securities so delivered shall be in
such authorized denominations and shall be registered in such name or names as
the Managing Underwriters shall have requested by notice in writing given to
the Company at least three business days prior to the Delivery Date. For the
purpose of expediting the checking of the Immediate Delivery Underwritten
Securities by the Managing Underwriters, the Company agrees to make such
Immediate Delivery Underwritten Securities available to the Managing
Underwriters for checking and packaging not later than 2:00 o'clock p.m., New
York City time, on the business day next preceding the Delivery Date.
5. The Company agrees:
(a) To furnish promptly to the Managing
Underwriters and to counsel for the Underwriters a copy of the
Registration Statement and the Prospectus, including all
documents incorporated in the Prospectus by reference and all
consents and exhibits filed therewith;
(b) To furnish the Underwriters with copies of
the Prospectus (including the documents incorporated by
reference therein) in such quantities as the Managing
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<PAGE> 6
Underwriters may reasonably request; provided, however, that
in case the Company is required to deliver copies of the
Prospectus to any Underwriter, other than pursuant to
subsection (f) of this Section 5, for use in connection with
sales of Underwritten Securities, at any time nine months or
more after the date of this Agreement, copies of such
Prospectus will be furnished at the expense of such
Underwriter;
(c) To file promptly all reports and definitive
proxy statements or information statements required to be
filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act during such period following the
date of this Agreement as a Prospectus is required to be
delivered in connection with the offering and sale of the
Underwritten Securities;
(d) To advise the Managing Underwriters, promptly
after it receives notice thereof, of the issuance by the
Commission of any stop order or any order preventing or
suspending the use of the Prospectus, of the suspension of the
qualification of the Underwritten Securities for offering or
sale in any jurisdiction, and of any request by the Commission
for the amending or supplementing of the Registration
Statement or the Prospectus;
(e) Promptly from time to time to take such
action as the Managing Underwriters may reasonably request to
qualify the Underwritten Securities for offering and sale
under the securities laws of such jurisdictions as the
Managing Underwriters may reasonably request and to comply
with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution; provided, however,
that in connection therewith the Company shall not be required
to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(f) Prior to the termination of the offering of
the Underwritten Securities, to notify the Managing
Underwriters promptly of any proposed amendment or supplement
to the Registration Statement or the Prospectus, and not to
file any such amendment or supplement which shall reasonably
be disapproved by the Managing Underwriters promptly after
such notification; if at any time during such period following
the date of the Agreement a Prospectus Supplement is required
to be delivered in connection with the offering and sale of
the Underwritten Securities, any event shall have occurred as
a result of which 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 light of the circumstances
under which they were made, not misleading, or if for any
other reason it shall be necessary to amend or supplement the
Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply
with the Act or the Exchange Act, to notify the Managing
Underwriters and upon the request of the Managing Underwriters
amend or supplement the Prospectus or, file such document and
to prepare and furnish, without charge to each Underwriter and
to any dealer in securities, as many copies as the Managing
Underwriters may from time to time reasonably request of a
supplement to the Prospectus or any applicable Prospectus
Supplement which will correct such statement or omission or
effect such compliance;
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<PAGE> 7
(g) To make generally available to the holders of
Underwritten Securities as soon as practicable an earnings
statement of the Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of the Act and Rule
158 thereunder and covering a period of at least twelve
consecutive months beginning after the effective date of the
Registration Statement;
(h) To pay or cause to be paid all expenses
incident to the performance of its obligations hereunder,
including the cost of all qualifications of the Underwritten
Securities under the securities laws of such jurisdictions as
the Managing Underwriters may have reasonably requested
(including the fees and disbursements of counsel to the
Underwriters in connection with such qualifications and in
connection with legal investment surveys) and the cost of
printing this Agreement and to pay or cause to be paid any
fees charged by securities rating services for rating the
Underwritten Securities; and
(i) During the period prior to the earlier of the
Delivery Date and the date on which any price restrictions on
the sale of the Underwritten Securities are terminated, not to
offer or sell, or to cause any subsidiary to offer or sell, in
the United States, without the prior consent of the Managing
Underwriters, any debt securities which are substantially
similar to the Underwritten Securities to be delivered to the
Managing Underwriter on behalf of the Underwriters on the
Delivery Date.
6. The obligations of the Underwriters hereunder
shall be subject to the condition that all representations and warranties and
other statements on the part of the Company herein are, at and as of the
Delivery Date, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed and the
following additional conditions:
(a) At or before the Delivery Date, no stop order
suspending the effectiveness of the Registration Statement or
any order directed to any document incorporated by reference
in the Prospectus or in any amendment or supplement thereto
shall have been issued, and prior to that time no stop order
proceeding shall have been initiated or threatened by the
Commission.
(b) All corporate proceedings and other legal
matters incident to the authorization, form and validity of
this Agreement, the Indenture and the Underwritten Securities,
the form of the Registration Statement, and the Prospectus,
other than financial statements and other financial data, and
all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably
satisfactory in all respects to Stroock & Stroock & Lavan,
counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that
such counsel shall reasonably request to enable them to pass
upon such matters.
(c) Since the respective dates as of which
information is given in the Prospectus, there shall not have
been any change (other than changes resulting from the
accretion of premium or amortization of debt discount on
long-term debt) in the consolidated long-term debt of the
Company and its subsidiaries, any change in the
5
<PAGE> 8
capital stock of the Company (except for increases in
outstanding capital stock which are not material), or any
change, or any development involving a prospective change, in
or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any
such case, is in the judgment of the Managing Underwriters so
material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the
delivery of the Underwritten Securities on the terms and in
the manner contemplated in the Prospectus.
(d) Bradley, Arant, Rose & White, counsel for the
Company (the "Company Counsel"), shall have furnished to the
Managing Underwriters their written opinion, dated the
Delivery Date, in form and substance satisfactory to the
Managing Underwriters, to the effect that:
(i) The Company is a duly organized and validly
existing corporation in good standing under the laws
of the State of Delaware with power and authority 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;
(ii) The Underwritten Securities conform to the
description thereof contained in the Prospectus;
(iii) The Indenture has been duly authorized,
executed and delivered, has been duly qualified under
the Trust Indenture Act of 1939 and constitutes the
legal, valid and binding agreement of the Company
enforceable in accordance with its terms (except as
enforcement thereof may be limited by applicable
bankruptcy, insolvency or other similar laws relating
to or affecting the enforcement of creditors' rights
generally and by general principles of equity which
may limit the availability of specific remedies); the
Immediate Delivery Underwritten Securities have been
duly authorized, executed, authenticated, issued and
delivered and constitute legal, valid and binding
obligations of the Company entitled to the benefits
of the Indenture; and the Delayed Delivery
Underwritten Securities, if any, have been validly
authorized and, when duly executed, authenticated,
issued and delivered to, and paid for by, the
respective purchasers thereof under the Delayed
Delivery Contracts, the Delayed Delivery Underwritten
Securities will have been validly issued and will be
outstanding and legally binding obligations of the
Company entitled to the benefits of the Indenture;
(iv) The Delayed Delivery Contracts have been
validly authorized, executed and delivered by the
Company and constitute valid and legally binding
obligations of the Company;
(v) All the outstanding shares of capital stock
of the Company have been duly and validly authorized
and issued and are fully paid and nonassessable;
6
<PAGE> 9
(vi) The Company does not know of any pending or
threatened action, suit or proceeding against the
Company or any of its subsidiaries of a character
required to be disclosed in the Registration
Statement or the Prospectus which is not adequately
disclosed therein, or of any contracts or documents
of a character required to be described in the
Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement which
are not described or filed as required;
(vii) The Registration Statement is effective under
the Act, and, to the best of knowledge of the
Company, no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened, and the Registration Statement and the
Prospectus (except for the financial statements and
financial data included therein as to which no
opinion need be expressed) comply as to form in all
material respects with the requirements of the Act
and the Rules and Regulations, and the documents
incorporated by reference therein (except for the
financial statements and financial data included
therein as to which no opinion need be expressed)
comply as to form in all material respects with the
requirements of the Exchange Act and the rules and
regulations of the Commission thereunder;
(viii) This Agreement has been duly authorized,
executed and delivered by the Company;
(ix) No consent, approval, authorization or order
of any court or governmental agency or body is
required for the consummation by the Company of the
transactions contemplated in this Agreement, except
such as have been obtained under the Act and the
Trust Indenture Act of 1939 and such as may be
required under the blue sky or similar laws of any
jurisdiction in connection with the purchase and
distribution of the Underwritten Securities by the
Underwriters;
(x) Neither the issue or sale of the Underwritten
Securities, nor the consummation of any other of the
transactions contemplated in this Agreement, nor the
fulfillment of the terms of this Agreement will
conflict with, result in a breach of or constitute a
default under the terms of the Restated Certificate
of Incorporation or By-laws of the Company or of any
indenture or other agreement or instrument known to
the Company Counsel to which the Company is a party
or bound, or any order or regulation known by the
Company Counsel to be applicable to the Company of
any court, regulatory body, administrative agency or
governmental body having jurisdiction over the
Company;
(xi) Nothing has come to the attention of the
Company Counsel which gives it reason to believe that
the Registration Statement or any amendment thereto
at the time it became effective under the Act
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, or that the Prospectus or any
supplement thereto contains any untrue statement of a
material fact or
7
<PAGE> 10
omits 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.
(e) The Company shall have furnished to the
Managing Underwriters on the Delivery Date a letter of Arthur
Andersen & Co., addressed to the Underwriters and dated the
Delivery Date, in form and substance satisfactory to the
Managing Underwriters,
(i) to the effect that:
(A) They are independent certified
public accountants with respect to the Company and
its subsidiaries within the meaning of the Act and
the applicable published Rules and Regulations
thereunder;
(B) In their opinion, the financial
statements and schedule(s) examined by them and
incorporated by reference in the Prospectus comply as
to form in all material respects with the applicable
accounting requirements of the Act and the Exchange
Act and the published rules and regulations
thereunder;
(C) On the basis of limited procedures,
not constituting an audit, including a reading of the
unaudited financial statements referred to below, a
reading of the latest available interim financial
information of the Company and its subsidiaries,
inspection of the minute books of the Company since
the end of the Company's previous fiscal year,
inquiries of officials of the Company responsible for
financial and accounting matters and such other
inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused
them to believe that:
(1) the unaudited financial
statements, if any, incorporated by reference
in the Prospectus do not comply in form in
all material respects with the applicable
accounting requirements of the Act and the
related published Rules and Regulations or
are not presented in conformity with
generally accepted accounting principles
applied on a basis substantially consistent
with that of the audited financial statements
of the Company and its subsidiaries
incorporated by reference in the Prospectus,
or
(2) as of the date not more than
five days prior to the date of their letter,
there has been any increase or decrease of
more than 10% in the reserve for possible
loan losses or any decrease in shareholders'
equity of the Company and its subsidiaries as
compared with the comparable amounts as of
the end of the Company's most recent fiscal
period for which financial statements (or an
unaudited summary thereof) are set forth or
incorporated by reference in the Prospectus,
except as disclosed in the Prospectus; and
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<PAGE> 11
(ii) any such other financial information
contained in the Prospectus, or in any amendment or
supplement thereto prepared in connection with the
Underwritten Securities, as the Company and the
Managing Underwriters may agree upon.
(f) The Company shall have furnished to the
Managing Underwriters on the Delivery Date a certificate,
dated the Delivery Date, of a principal executive officer of
the Company as to the accuracy of the representations and
warranties of the Company as at the Delivery Date, as to the
performance by the Company of all of its obligations hereunder
to be performed at or prior to the Delivery Date and as to the
matters set forth in subsections (a) and (c) of this Section
6.
7. (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 Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim; 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 in
the Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Managing Underwriters
expressly for use therein, and (ii) the foregoing indemnification with respect
to any Preliminary Prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages or liabilities
purchased Underwritten Securities, or any person controlling such Underwriter,
if a copy of the Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of such Underwriter to such person, if required by law so
to have been delivered, at or prior to the written confirmation of the sale of
the Underwritten Securities to such person, and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities. For purposes of subsections (a), (b)
and (d) of this Section 7, the term "Underwriter" shall include any securities
dealer participating with or through the Underwriters in the distribution of
Underwritten Securities who is an "underwriter" within the meaning of the Act.
(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 Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
9
<PAGE> 12
alleged untrue statement or omission or alleged omission was made in the
Registration Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Managing Underwriters expressly 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 any such action or claim.
(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 therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party, and it being understood that the
indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys for
all such indemnified parties), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in
subsection (a) or (b) above is for any reason, other than as specified in such
subsection, held by a court to be unavailable and the Company or any
Underwriter has been required to pay damages as a result of a determination by
a court that the Registration Statement or the Prospectus, or any amendment or
supplement thereto, contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, then the Company shall contribute to the
damages paid by the Underwriters, and the Underwriters shall contribute to the
damages paid by the Company, but in each case only if the untrue statement or
omission would otherwise have given rise to an indemnification obligation on
the part of the contributing party under the terms of (a) or (b) above, and
only to the extent that such damages arise out of or are based upon such untrue
statement or omission, (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 Underwritten Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also
10
<PAGE> 13
the relative fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
damages 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 net proceeds
from the offering (before deducting expenses) received by the Underwriters, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue statement of a material fact or the 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 their respective
obligations to contribute pursuant to this subsection (d) were to be determined
by pro rata allocation of the aggregate damages (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in the
first sentence of this subsection (d). For purposes of this subsection (d),
the term "damages" shall include any legal or other expenses reasonably
incurred by the Company or any of the Underwriters in connection with
investigating or defending any action or claim which is the subject of the
contribution provisions 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
Underwritten Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue statement or
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute shall be on the same basis as
their obligation to purchase the Underwritten Securities.
(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 Act and the
Exchange Act; and the obligations of the Underwriters under this Section 7
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who signed the
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act and the Exchange Act.
8. (a) If any Underwriter shall default in
its obligation to purchase the Underwritten Securities which it has agreed to
purchase hereunder, the non-defaulting Underwriters may in their discretion
arrange for the non-defaulting Underwriters or another party or parties to
purchase such Underwritten Securities on the terms contained herein. If within
thirty-six (36) hours after such default by any Underwriter, the non-defaulting
Underwriters do not arrange for the purchase of such Underwritten Securities,
then the Company shall be entitled to a further period of thirty-six (36) hours
within which to procure another party or parties satisfactory to the
non-defaulting Underwriters to purchase such Underwritten Securities on such
terms. In the event that, within the respective prescribed period, the
non-defaulting Underwriters notify the Company that the non-defaulting
Underwriters have so arranged for the purchase of such Underwritten Securities,
or the Company notifies the non-
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<PAGE> 14
defaulting Underwriters that it has so arranged for the purchase of such
Underwritten Securities, the non-defaulting Underwriters or the Company shall
have the right to postpone the Delivery Date for a period of not more than
seven (7) days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in the opinion
of the Managing Underwriters may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Underwritten Securities.
(b) If, after giving effect to any arrangements
for the purchase of the Underwritten Securities of a defaulting Underwriter or
Underwriters by the non-defaulting Underwriters or the Company or both as
provided in subsection (a) above, the aggregate principal amount of
Underwritten Securities which remains unpurchased does not exceed 10% of the
aggregate principal amount of all the Underwritten Securities, then the Company
shall have the right to require each non-defaulting Underwriter to purchase the
Underwritten Securities which such Underwriter agreed to purchase hereunder
and, in addition, to require each non-defaulting Underwriter to purchase its
pro rata share (based on the principal amount of Underwritten Securities which
such Underwriter agreed to purchase hereunder) of the Underwritten Securities
of such defaulting Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements
by the non-defaulting Underwriters or the Company or both, as provided in
subsection (a) above for the purchase of the Underwritten Securities of a
defaulting Underwriter or Underwriters, the aggregate principal amount of
Underwritten Securities which remains unpurchased exceeds 10% of the aggregate
principal amount of all the Underwritten Securities, or if the Company shall
not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Underwritten Securities of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company,
except for the expenses to be borne by the Company as provided in Section 5
hereof and the indemnity and contribution agreements in Section 7 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
9. If this Agreement shall be terminated
pursuant to Section 8(c) or Section 11 (other than pursuant to clause (a)(ii))
hereof, the Company shall not then be under any liability to any Underwriter
except as provided in Section 5 and Section 7 hereof but, if for any other
reason the Company shall fail to tender the Immediate Delivery Underwritten
Securities for delivery to the Underwriters or the Underwriters shall decline
to purchase the Immediate Delivery Underwritten Securities, the Company will
reimburse the Underwriters for all out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Immediate Delivery
Underwritten Securities and the solicitation of purchases of the Delayed
Delivery Underwritten Securities, and upon demand the Company shall pay the
full amount thereof to the Managing Underwriters, but the Company shall then be
under no further liability to any Underwriter except as provided in Section 5
and Section 7 hereof.
12
<PAGE> 15
10. The respective indemnities, agreements,
representations, warranties, and other statements of the Company and the
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain 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 of
any Underwriter, or the Company, or any officer of the Company who signed the
Registration Statement or any director or controlling person of the Company,
and shall survive delivery of and payment for the Underwritten Securities.
11. This Agreement shall be subject to
termination in the absolute discretion of the Underwriters, by notice given to
the Company, if (a) after the execution and delivery of this Agreement and
prior to the Delivery Date (i) trading generally shall have been suspended or
materially limited on the New York Stock Exchange, (ii) trading of the common
stock of the Company shall have been suspended on the principal trading market
on which such common stock is listed, (iii) a general moratorium on commercial
banking activities in the State of New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities in which the United States is engaged and
(b) in the case of any of the events specified in clauses (a)(i) through (iv),
such event singly or together with any other such event makes it, in the
reasonable judgment of the Underwriters, impracticable to market the
Underwritten Securities on the terms and in the manner contemplated by the
Prospectus.
12. In all dealings hereunder, the Managing
Underwriters shall act on behalf of each of the Underwriters, and the parties
hereto shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by the Managing
Underwriters.
13. All statements, requests, notices and
agreements hereunder shall be in writing, or by telegram if promptly confirmed
in writing, and if to the Underwriters, shall be sufficient in all respects if
delivered or sent by registered mail to the Managing Underwriters at their
address furnished to the Company and if to the Company, shall be sufficient in
all respects if delivered or sent by registered mail to the Company at 420
North 20th Street, Birmingham, Alabama 35203, Attention: Aubrey D. Barnard.
14. This Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters and the Company, and to the
extent provided in Sections 7 and 9 hereof, the directors of the Company, the
officers of the Company who signed the Registration Statement and each person
who controls any Underwriter or the Company, and their respective personal
representatives, successors, and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any
Underwritten Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
15. Time shall be of the essence of this
Agreement.
16. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
13
<PAGE> 16
17. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which shall
be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
14
<PAGE> 17
EXHIBIT A
SOUTHTRUST CORPORATION
Delayed Delivery Contract
____________, 19___
SouthTrust Corporation
420 North 20th Street
34th Floor
Birmingham, Alabama 35203
Dear Sirs:
The undersigned hereby agrees to purchase from
SouthTrust Corporation, a Delaware corporation (the "Company"), and the Company
hereby agrees to sell to the undersigned ____________________, $____________
principal amount of the Company's above-captioned ______________ (the
"Securities") offered by the Company's prospectus dated ___________ 199__, as
supplemented by the prospectus supplement dated _________, 199__
(collectively, the "Prospectus"), receipt of a copy of which is hereby
acknowledged, at a purchase price of __ % of the principal amount thereof plus
accrued interest or accrued amortization of original issue discount, or both,
as the case may be, from __________ 199__ to the Delivery Date (as defined in
the next paragraph) and on the further terms and conditions set forth in this
Delayed Delivery Contract (the "Contract").
Payment for and delivery of the securities to be
purchased by the undersigned shall be made on __________, 19__, herein called
the "Delivery Date".
At 10:00 A.M., New York City time, on the Delivery
Date, the Securities to be purchased by the undersigned hereunder will be
delivered by the Company to the undersigned, and the undersigned will accept
delivery of such Securities and will make payment to the Company of the
purchase price therefor, all at the principal office of the Company. Payment
will be by wire transfer or credit to the Company's bank account maintained at
_________________________. Securities will be delivered in temporary or
definitive fully registered form in such authorized denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than two full
business days prior to the Delivery Date or, if the undersigned fails to make a
timely designation in the foregoing manner, in the form of one fully registered
certificate representing the Securities in the above principal amount,
registered in the name of the undersigned.
This Contract will terminate and be of no further
force and effect after _______________, 199__, unless (i) on or before such
date it shall have been executed and
15
<PAGE> 18
delivered by both parties hereto and (ii) the Company shall have (a) sold to
the Underwriters named in the Prospectus the immediate Delivery Underwritten
Securities (as defined in the Underwriting Agreement referred to in the
Prospectus) and (b) mailed or delivered to the undersigned at its address set
forth below a notice to that effect, stating the date of the occurrence
thereof, accompanied by copies of the opinion of counsel for the Company
delivered to such Underwriters pursuant to Paragraph 6(d) of the Underwriting
Agreement.
The obligation of the undersigned to accept delivery
of and make payment for the Securities on the Delivery Date will be subject to
the condition that the Securities shall not on the Delivery Date be an
investment prohibited by the laws of the jurisdiction to which the undersigned
is subject, the undersigned hereby representing that such an investment is not
so prohibited on the date hereof.
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 acceptance of any Delayed
Delivery Contract (as defined in said Underwriting Agreement) 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.
Very truly yours,
(Name of Purchaser)
By
--------------------------------
Title
-----------------------------
Address:
----------------------------------
----------------------------------
----------------------------------
Accepted
__________, 199__.
SOUTHTRUST CORPORATION
By
------------------------------
Title
---------------------------
16
<PAGE> 1
Senior Indenture
================================================================================
SOUTHTRUST CORPORATION
TO
__________________________________,
TRUSTEE
__________________________________
INDENTURE
DATED AS OF _______________, 19__.
__________________________________
================================================================================
1
<PAGE> 2
TABLE OF CONTENTS
ARTICLE ONE
<TABLE>
<S> <C> <C>
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . 10
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . 11
SECTION 104. Notices, etc., to Trustee and Company . . . . . . . . . . . . . . . . . 11
SECTION 105. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 106. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . 13
SECTION 107. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . 13
SECTION 108. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 109. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 111. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 112. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 113. No Security Interest Created . . . . . . . . . . . . . . . . . . . . . 14
SECTION 114. Liability Solely Corporate . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE TWO
DEBT SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . 15
ARTICLE THREE
THE DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . 16
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . 19
SECTION 304. Temporary Debt Securities; Exchange of Temporary Global
Notes for Definitive Bearer Securities . . . . . . . . . . . . . . . . 22
SECTION 305. Registration, Transfer and Exchange . . . . . . . . . . . . . . . . . . 27
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt Securities . . . . . . . . . 29
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . 30
SECTION 308. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 309. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 310. Currency Debt Securities . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 311. Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 312. Exchange Upon Default . . . . . . . . . . . . . . . . . . . . . . . . . 36
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . 37
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . 39
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . 40
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . 41
SECTION 505. Trustee May Enforce Claims Without Possession of Debt Securities . . . 42
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . 43
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest. . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . 44
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . 44
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . 44
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . 46
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . 46
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 604. Not Responsible for Recitals or Issuance of Debt Securities . . . . . . 49
SECTION 605. May Hold Debt Securities . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . 49
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . 50
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . 55
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . 56
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . 57
SECTION 612. Merger, Conversion, Consolidation or,
Succession to Business. . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . . . 58
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . 62
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY. . . . . . . . . . . . . 63
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . 63
SECTION 702. Preservation of Information; Communication to Holders . . . . . . . . . 64
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE EIGHT
CONCERNING THE HOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 801. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 802. Proof of Ownership; Proof of Execution of
Instruments by Holders. . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 803. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 804. Revocation of Consents; Future Holders Bound . . . . . . . . . . . . . 69
ARTICLE NINE
HOLDER'S MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 901. Purposes of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 902. Call of Meetings by Trustee . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 903. Call of Meetings by Company or Holders . . . . . . . . . . . . . . . . 70
SECTION 904. Qualifications for Voting . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 905. Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 906. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 907. No Delay of Rights by Meeting . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . . . . . . . . . 72
SECTION 1001. Company May Consolidate, etc., Only on Certain Terms . . . . . . . . . 72
SECTION 1002. Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . 73
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1101. Supplemental Indentures Without Consent of Holders . . . . . . . . . . 73
SECTION 1102. Supplemental Indentures With Consent of Holders . . . . . . . . . . . . 75
SECTION 1103. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . 76
SECTION 1104. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . 76
SECTION 1105. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . 76
SECTION 1106. Reference in Debt Securities to Supplemental Indentures . . . . . . . . 76
SECTION 1107. Notice of Supplemental Indenture . . . . . . . . . . . . . . . . . . . 76
</TABLE>
iii
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<TABLE>
<S> <C> <C>
ARTICLE TWELVE
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1201. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . 77
SECTION 1202. Payment of Additional Amounts . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1203. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . 79
SECTION 1204. Money for Debt Securities; Payments To Be Held in Trust . . . . . . . . 80
SECTION 1205. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 1206. Purchase of Debt Securities by Company . . . . . . . . . . . . . . . . 81
SECTION 1207. Limitation on Disposition of Voting Stock of, and Merger
and Sale of Assets by, Major Constituent Banks . . . . . . . . . . . . 82
SECTION 1208. Exempted Transactions . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1209. Officers' Certificate as to Default; Notice of Default . . . . . . . . 82
SECTION 1210. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . 83
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1301. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1302. Tax Redemption; Special Tax Redemption . . . . . . . . . . . . . . . . 83
SECTION 1303. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . 86
SECTION 1304. Selection by Trustee of Debt Securities to be Redeemed . . . . . . . . 86
SECTION 1305. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 1306. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 1307. Debt Securities Payable on Redemption Date . . . . . . . . . . . . . . 88
SECTION 1308. Debt Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . 88
ARTICLE FOURTEEN
SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 1401. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 1402. Satisfaction of Mandatory Sinking Fund
Payments with Debt Securities . . . . . . . . . . . . . . . . . . . . . 89
SECTION 1403. Redemption of Debt Securities for Sinking Fund . . . . . . . . . . . . 90
ARTICLE FIFTEEN
DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 1501. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 1502. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
SECTION 1503. Deposited Moneys and U.S. Government Obligations
to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SECTION 1504. Repayment to Company . . . . . . . . . . . . . . . . . . . . . . . . . 93
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
TESTIMONIUMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
</TABLE>
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<TABLE>
<S> <C>
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
EXHIBIT B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
</TABLE>
v
<PAGE> 7
SENIOR INDENTURE
INDENTURE dated as of __________________, between SOUTHTRUST
CORPORATION, a Delaware corporation (hereinafter called the "Company"), having
its principal executive office at 420 North 20th Street, Birmingham, Alabama
35203 and _____________, a _______________________________________ (hereinafter
called the "Trustee"), having its Corporate Trust Office at
____________________________, _____________________.
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 debentures,
notes, bonds or other evidences of indebtedness (herein generally called the
"Debt Securities"), to be issued in one or more series, as in this Indenture
provided.
All things necessary have been done to make this Indenture a
valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
Debt Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of Debt Securities or of
Debt Securities of any series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 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
1
<PAGE> 8
principles as are generally accepted in the United States of America at the
date of such computation; and
(4) the words "herein," "hereof " and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Three or Article
Six, are defined in those respective Articles.
"Act" when used with respect to any Holder has the meaning
specified in Section 801.
"Affected Security" has the meaning specified in Section
1302(b).
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" has the meaning specified in Section
614.
"Authorized Newspaper" means a newspaper in an official
language of the country of publication customarily published at least once a
day, and customarily published for at least five days in each calendar week,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any Business Day in
such city.
"Banking Subsidiary" means any Subsidiary organized under the
laws of the United States or of any state, commonwealth, territory or
possession thereof and which conducts a commercial, merchant or other banking
business, or a trust business.
"Bearer Security" means any Debt Security (with or without
Coupons), in the form established pursuant to Section 201, which is payable to
bearer (including any Global Note) and title to which passes by delivery only,
but does not include any Coupons.
"Board of Directors" means either the board of directors of
the Company, or any committee of that board duly authorized to act in respect
hereof.
"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.
2
<PAGE> 9
"Business Day" when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the Debt
Securities means any day which is not a Saturday, a Sunday or a legal holiday
or a day on which banking institutions or trust companies in that Place of
Payment or other location are authorized or obligated by law or regulation to
remain closed, except as otherwise specified pursuant to Section 301.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres S.A.
"Code" means the Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder, as in effect on the date hereof.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the Chairman, the
President or a Vice President and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Component Currency" has the meaning specified in Section
310(i).
"Consolidated Banking Assets" means all assets owned directly
or indirectly by a Banking Subsidiary and reflected on the Company's
consolidated balance sheet prepared in accordance with generally accepted
accounting principles applicable to banks and bank holding companies.
"Controlled Subsidiary" means any Subsidiary more than 80% of
the outstanding shares of the Voting Stock of which is at the time owned
directly or indirectly by the Company or by one or more Controlled Subsidiaries
or by the Company and one or more Controlled Subsidiaries.
"Conversion Date" has the meaning specified in Section 310(e).
"Conversion Event" means the cessation of (i) a Foreign
Currency to be used both by the government of the country which issued such
Currency and for the settlement of transactions by public institutions of or
within the international banking community, (ii) the ECU to be used both within
the European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any Currency unit
other than the ECU to be used for the purposes for which it was established.
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"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of this
instrument is located as specified in the first paragraph hereof.
The term "corporation" includes corporations, associations,
companies and business trusts.
"Coupon" means any interest coupon appertaining to any Bearer
Security.
"Coupon Security" means any Bearer Security authenticated and
delivered with one or more Coupons appertaining thereto.
"Currency" means Dollars or Foreign Currency.
"Debt Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any Debt Securities (including
any Global Notes) authenticated and delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Discharged" has the meaning specified in Section 1502.
"Discount Security" means any Debt Security which is issued
with "original issue discount" within the meaning of Section 1273(a) of the
Code and the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time of payment is legal
tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning
specified in Section 310(h)
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 310(g).
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 310(i).
"Euro-clear Operator" means the operator of the Euro-clear
System or its successor.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy Community.
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"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate Agent" means the New York Clearing House bank,
if any, from time to time selected by the Company for purposes of Section 310.
"Fixed Rate Security" means a Debt Security which provides for
the payment of interest at a fixed rate (excluding amounts payable pursuant to
Section 1202 or 1302).
"Floating Rate Security" means a Debt Security which provides
for the payment of interest at a variable rate determined periodically by
reference to an interest rate index or any other index specified pursuant to
Section 301.
"Foreign Currency" means a currency issued by the government
of any country other than the United States or a composite currency or currency
unit the value of which is determined by reference to the values of the
currencies of any group of countries.
"Global Note" means a Registered or Bearer Security evidencing
all or part of a series of Debt Securities, including, without limitation, any
temporary or permanent Global Note.
"Holder" means, with respect to a Registered Security, the
Registered Holder, and with respect to a Bearer Security or a Coupon, the
bearer thereof.
"Indenture" means this instrument as originally executed, or
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and, unless the context otherwise requires, shall include the
terms of a particular series of Debt Securities as established pursuant to
Section 301.
The term "interest," when used with respect to a Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity and, when used with respect to a Bearer Security,
includes any additional amounts payable on such Bearer Security pursuant to
Section 1202 or 1302.
"Interest Payment Date" with respect to any Debt Security
means the Stated Maturity of an installment of interest on such Debt Security.
"Major Constituent Bank" means any Banking Subsidiary, the
Consolidated Banking Assets of which constitute 10% or more of the Company's
Consolidated Banking Assets.
"Market Exchange Rate" means (i) for any conversion involving
a Currency unit on the one hand and Dollars or any Foreign Currency on the
other, the exchange rate between the relevant Currency unit and Dollars or such
Foreign Currency calculated by the method specified pursuant to Section 301 for
the securities of the relevant series, (ii) for any conversion
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of Dollars into any Foreign Currency, the noon (New York City time) buying rate
for such Foreign Currency for cable transfers quoted in New York City as
certified for customs purposes by the Federal Reserve Bank of New York and
(iii) for any conversion of one Foreign Currency into Dollars or another
Foreign Currency, the spot rate at noon local time in the relevant market at
which, in accordance with normal banking procedures, the Dollars or Foreign
Currency into which conversion is being made could be purchased with the
Foreign Currency from which conversion is being made from major banks located
in either New York City, London or any other principal market for Dollars or
such purchased Foreign Currency. In the event of the unavailability of any of
the exchange rates provided for in the foregoing clauses (i), (ii) and (iii)
the Exchange Rate Agent, if any, or if there shall not be an Exchange Rate
Agent, then the Trustee shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New York as of the
most recent available date, or quotations from one or more major banks in New
York City, London or other principal market for such Currency or Currency unit
in question, or such other quotations as the Exchange Rate Agent or the
Trustee, as the case may be, shall deem appropriate. Unless otherwise specified
by the Exchange Rate Agent, if any, or if there shall not be an Exchange Rate
Agent, then by the Trustee, 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 insurer of securities designated in such
Currency or Currency unit would purchase such Currency or Currency unit in
order to make payments in respect of such securities.
"Maturity" when used with respect to any Debt Security means
the date on which the principal of such Debt Security or an installment of
principal becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption,
repayment at the option of the Holder thereof or otherwise.
"Mortgage" means any mortgage, lien, pledge or other
encumbrance.
"Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel to the Company (including an employee of the Company) or an
Affiliate of the Company and who shall be satisfactory to the Trustee, which is
delivered to the Trustee.
"Outstanding", when used with respect to Debt Securities,
means, as of the date of determination, all Debt Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Debt Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in
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trust or set aside and segregated in trust by the Company (if the Company shall
act as its own Paying Agent) for the Holders of such Debt Securities and any
coupons thereto appertaining: provided, however, that if such Debt Securities
are to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been made;
and
(iii) Debt Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Debt Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Debt Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Debt Securities are held by a bona
fide purchase in whose hands such Debt Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debt Securities Outstanding have performed any Act
hereunder, Debt Securities owned by the Company or any other obligor upon the
Debt Securities or any Affiliate of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such Act, only Debt
Securities which the Trustee knows to be so owned shall be so disregarded, Debt
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right to act with respect to such Debt Securities and that the
pledgee is not the Company or any other obligor upon the Debt Securities or any
Affiliate of the Company or of such other obligor. In determining whether the
Holders of the requisite principal amount of Outstanding Debt Securities have
performed any Act hereunder, the principal amount of a Discount Security that
shall be deemed to be Outstanding for such purpose shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 and the principal amount of a Debt Security denominated
in a Foreign Currency that shall be deemed to be Outstanding for such purpose
shall be the amount calculated pursuant to Section 310(k).
"Overdue Rate," when used with respect to any series of the
Debt Securities, means the rate designated as such in or pursuant to the Board
Resolution or the supplemental indenture, as the case may be, relating to such
series as contemplated by Section 301.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Debt Securities
on behalf of the Company.
"Permanent Global Note" shall have the meaning given such
term in Section 304.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, estate, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" when used with respect to the Debt
Securities of any series means the place or places where the principal of (and
premium, if any) and interest on the Debt Securities of that series are payable
as specified pursuant to Section 301.
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"Predecessor Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the same debt as
that evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 306 in
lieu of a mutilated, lost, destroyed or stolen Debt Security or a Debt Security
to which a mutilated, lost, destroyed or stolen Coupon appertains shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Debt Security or the Debt Security to which the mutilated, lost, destroyed or
stolen Coupon appertains, as the case may be.
"Redemption Date" means the date fixed for redemption of any
Debt Security pursuant to this Indenture which, in the case of a Floating Rate
Security, unless otherwise specified pursuant to Section 301, shall be an
Interest Payment Date only.
"Redemption Price" means, in the case of a Discount Security,
the amount of the principal thereof that would be due and payable as of the
Redemption Date upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, and in the case of any other Debt Security, the
principal amount thereof, plus, in each case, premium, if any, and accrued and
unpaid interest, if any, to the Redemption Date.
"Registered Holder" means the Person in whose name a
Registered Security is registered in the Security Register.
"Registered Security" means any Debt Security in the form
established pursuant to Section 201 which is registered as to principal and
interest in the Security Register.
"Regular Record Date" for the interest payable on the
Registered Securities of any series on any Interest Payment Date means the date
specified for the purpose pursuant to Section 301 for such Interest Payment
Date.
"Responsible Officer" when used with respect to the Trustee
means any officer of the Trustee assigned by it to administer its corporate
trust matters.
"Restricted Period" shall have the meaning as set forth in
U.S. Treasury Regulation Section 1.163-5(c)(2)(i)(D)(7).
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305(a).
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Specified Amount" has the meaning specified in Section 310(i).
"Stated Maturity" when used with respect to any Debt Security
or any installment of principal thereof or premium thereon or interest thereon
means the date specified in such Debt Security or the Coupon, if any,
representing such installment of interest, as the date on which
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the principal of such Debt Security or such installment of principal, premium
or interest is due and payable.
"Subsidiary" means a corporation, at least a majority of the
outstanding voting stock of which is owned directly or indirectly, by the
Company or by one or more 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 for so long as no senior class of stock has such voting power by reason
of any contingency.
"Tangible Stockholders' Equity" as of any date means the
aggregate of (i) capital (including all preferred stock, common stock and
capital surplus) and (ii) retained earnings, after deducting intangibles (other
than goodwill, net of accumulated amortization, existing as of December 31,
1988), any contra-equity account, and the cost of shares of capital stock held
in treasury, all as would be shown on a consolidated balance sheet of the
Company and its subsidiaries as of such date prepared in accordance with
generally accepted accounting principles.
"temporary Global Note" shall have the meaning given such term
in Section 304.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Debt Securities of any series shall mean the Trustee with
respect to Debt Securities of such series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
amended and as in force at the date as of which this instrument was executed,
except as provided in Section 1105.
"United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction (including the Commonwealth of Puerto
Rico).
"United States Alien" means any person who, as to the United
States, is a foreign corporation, a non-resident alien individual, a
non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more members of which is, as to the United States, a foreign
corporation, a non-resident alien individual or a non-resident alien fiduciary
of a foreign estate or trust.
"U.S. Depositary" means a clearing agency registered under the
Securities Exchange Act of 1934, as amended, or any successor thereto, which
shall in either case be designated by the Company pursuant to Section 301 until
a successor U.S. Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "U.S. Depositary" shall mean or
include each Person who is then a U.S. Depositary hereunder, and if at any time
there is more than one such Person, "U.S. Depositary" as used with respect to
the
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Debt Securities of any series shall mean the U.S. Depositary with respect to
the Debt Securities of that series.
"U.S. Government Obligations" has the meaning specified in
Section 1502.
"U.S. Person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States, or an estate or trust the income of which
is subject to United States federal income taxation regardless of its source.
"Valuation Date" has the meaning specified in Section 310(d).
"Vice President" includes with respect to the Company and the
Trustee, any Vice President of the Company or the Trustee, as the case may be,
whether or not designated by a number or word or words added before or after
the title "Vice President".
"Voting Stock" means stock which ordinarily has 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.
"Wholly-Owned Subsidiary" means a Subsidiary of which all of
the outstanding voting stock (other than directors' qualifying shares) is at
the time, directly or indirectly, owned by the Company, or by one or more
Wholly-Owned Subsidiaries of the Company, or by the Company and one or more
Wholly-Owned Subsidiaries.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, 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 covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 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 a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate of opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Notices, etc., to Trustee and Company.
Any Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with:
(1) The Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office (attention: Corporate Trust Department), or
(2) The Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, or airmail postage prepaid if
sent from outside the United States, to the Company addressed to it at the
address of its principal office specified in the first paragraph of this
instrument, to the attention of its Treasurer, or at any other address
previously furnished in writing to the Trustee by the Company.
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Any such Act or other document shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
SECTION 105. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, (1) such notice shall be sufficiently given to Registered Holders
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to such Registered Holders as their names and
addresses appear in the Security Register, within the time prescribed, and (2)
such notice shall be sufficiently given to Holders of Bearer Securities or
Coupons (unless otherwise herein expressly provided) if published at least
twice in an Authorized Newspaper or Newspapers in The City of New York and, if
Debt Securities of such series are then listed on The Stock Exchange of the
United Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or
any other stock exchange located outside the United States and such stock
exchange shall so require, an Authorized Newspaper in London or Luxembourg or
in such other city or cities specified pursuant to Section 301 or in any Debt
Security on Business Days, the first such publication to be not earlier than
the earliest date and not later than two Business Days prior to the latest date
prescribed for the giving of such notice: provided, however, that, in any case,
any notice to Holders of Floating Rate Securities regarding the determination
of a periodic rate of interest, if such notice is required pursuant to Section
301, shall be sufficiently given if given in the manner specified pursuant to
Section 301. The Company shall advise the Trustee if the rules of any such
exchange located outside of the United States on which is listed Debt
Securities of a series the Holders of which are being given notice pursuant to
the preceding sentence of this paragraph requires publication of such notice as
set forth in such sentence.
In the event of suspension of regular mail service or by
reason of any other cause it shall be impracticable to give notice by mail,
such notification as shall be given with the approval of the Trustee shall
constitute sufficient notice for every purpose hereunder.
In the event of suspension of publication of any Authorized
Newspapers or by reason of any other cause it shall be impracticable to give
notice by publication, such notification as shall be given with the approval of
the Trustee shall constitute sufficient notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance on such waiver. In any case where notice to Holders is given
by mail, neither the failure to mail such notice nor any defect in any notice
so mailed to any particular Holder, shall affect the sufficiency of such notice
with respect to other Holders, and any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given.
In any case where notice to Holders is given by publication,
any defect in any notice so published as to any particular Holder shall not
affect the sufficiency of such notice with
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respect to other Holders, and any notice which is published in the manner
herein provided shall be conclusively presumed to have been duly given.
SECTION 106. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included or deemed to be
included in this Indenture by any of provisions of the Trust Indenture Act,
such required or deemed provision shall control.
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 parties
hereto shall bind their respective successors and assigns and inure to the
benefit of their permitted successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in the Debt
Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities, express
or implied, shall give to any Person, other than the parties hereto, any
Security Registrar, any Paying Agent, any Exchange Rate 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, the Debt Securities and the Coupons shall be
deemed to be contracts made and to be performed entirely in the State of New
York, and for all purposes shall be governed by and construed in accordance
with the laws of said State without regard to the conflicts of law rules of
said State.
SECTION 112. Legal Holidays.
Unless otherwise specified pursuant to Section 301 or in any
Debt Security, in any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Debt Security of any series shall not be a Business Day
at any Place of Payment for the Debt Securities of that series, then
(notwithstanding any other provision of this Indenture or of the Debt
Securities or Coupons) payment of principal (and premium, if any) or interest
need not be made at such Place
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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 or at the Stated Maturity, and no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be, to such
Business Day if such payment is made or duly provided for on such Business Day.
SECTION 113. No Security Interest Created.
Nothing in this Indenture or in the Debt Securities or
Coupons, express or implied, shall be construed to constitute a security
interest under the Uniform Commercial Code or similar legislation, as now or
hereafter enacted and in effect in any jurisdiction where property of the
Company or its Subsidiaries is or may be located.
SECTION 114. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of
(or premium, if any) or the interest on any Debt Securities or Coupons, or any
part thereof, or of the indebtedness represented thereby, or upon any
obligation, covenant or agreement of this Indenture, against any incorporator,
or against any stockholder, officer or director, as such, past, present or
future, of the Company (or any incorporator, stockholder, officer or director
of any predecessor or successor corporation), either directly or through the
Company (or any such predecessor or successor corporation), whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly agreed and understood
that this Indenture and all the Debt Securities and Coupons are solely
corporate obligations, and that no personal liability whatsoever shall attach
to, or be incurred by, any such incorporator, stockholder, officer or director,
past, present or future, of the Company (or any incorporator, stockholder,
officer or director of any such predecessor or successor corporation), either
directly or indirectly through the Company or any such predecessor or successor
corporation, because of the indebtedness hereby authorized or under or by
reason of any of the obligations, covenants, promises or agreements contained
in this Indenture or in any of the Debt Securities or Coupons or to be implied
herefrom or therefrom; and that any such personal liability is hereby expressly
waived and released as a condition of, and as part of the consideration for,
the execution of this Indenture and the issue of Debt Securities; provided,
however, that nothing herein or in the Debt Securities or Coupons contained
shall be taken to prevent recourse to and the enforcement of the liability, if
any, of any stockholder or subscriber to capital stock upon or in respect of
the shares of capital stock not fully paid.
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. Forms Generally.
The Debt Securities and the Coupons, if any, of each series
shall be substantially in one of the forms (including global form) established
in or pursuant to a Board Resolution or one or more indentures supplemental
hereto, and shall have such appropriate insertions,
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omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements placed thereon
as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or
regulation or any securities exchange on which any series of the Debt
Securities may be listed, or to conform to usage, all as determined by the
officers executing such Debt Securities and Coupons as conclusively evidence by
their execution of such Debt Securities and Coupons. If the form of a series of
Debt Securities or Coupons (or any Global Note) is established in or pursuant
to a Board Resolution, a copy of such Board Resolution shall be delivered to
the Trustee, together with an Officers' Certificate setting forth the form of
such series, at or prior to the delivery of the Company Order contemplated by
Section 303 for the authentication and delivery of such Debt Securities (or any
such Global Note) or Coupons. Unless otherwise specified as contemplated by
Section 301, Debt Securities in bearer form (other than in global form) shall
have Coupons attached.
The definitive Debt Securities and Coupons, if any, of each
series shall be printed, lithographed or engraved or produced by any
combination of these methods on steel engraved borders or may be produced in
any other manner permitted by the rules of any securities exchange on which
such series of Debt Securities may be listed, all as determined by the officers
executing such Debt Securities and Coupons, as conclusively evidenced by their
execution of such Debt Securities and Coupons.
SECTION 202. Form of Trustee's Certificate of
Authentication.
The form of the Trustee's certificate of authentication to be
borne by the Debt Securities shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated
therein referred to in the within mentioned Indenture.
---------------------------------------
as Trustee
By
-------------------------------------
Authorized Officer
ARTICLE THREE
THE DEBT SECURITIES
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SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and (subject to
Section 303) set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of Debt Securities
of any series:
(1) the title of the Debt Securities of the series (which
shall distinguish the Debt Securities of such series from all other series of
Debt Securities);
(2) the limit, if any, upon the aggregate principal amount of
the Debt Securities of the series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and delivered
upon transfer of, or in exchange for, or in lieu of, other Debt Securities of
such series pursuant to Sections 304, 305, 306, 1106 or 1308);
(3) the date or dates on which or periods during which the
Debt Securities of the series may be issued, and the date or dates (or the
method of determination thereof) on which the principal of (and premium, if
any, on) the Debt Securities of such series are or may be payable (which, if so
provided in such Board Resolution or supplemental indenture) may be determined
by the Company from time to time and set forth in the Debt Securities of the
series issued from time to time);
(4) the rate or rates (or the method of determination
thereof) at which the Debt Securities of the series shall bear interest, if
any, and the dates from which such interest shall accrue (which, in either case
or both, if so provided in such Board Resolution or supplemental indenture may
be determined by the Company from time to time and set forth in the Debt
Securities of the series issued from time to time), the Interest Payment Dates
on which such interest shall be payable (or the method of determination
thereof), and, in the case of Registered Securities, the Regular Record Dates
for the interest payable on such Interest Payment Dates and, in the case of
Floating Rate Securities, the notice, if any, to Holders regarding the
determination of interest and the manner of giving such notice, and the extent
to which, or the manner in which, any interest payable on any Global Note on an
Interest Payment Date will be paid if other than in the manner provided in
Section 307;
(5) the place or places, if any, in addition to or instead of
the Corporate Trust Office of the Trustee (in the case of Registered
Securities) or the principal London office of the Trustee (in the case of
Bearer Securities), where the principal of (and premium, if any) and interest
on Debt Securities of the series shall be payable;
(6) the obligation, if any, of the Company to redeem, to
repay or purchase Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of the Holder and the period or periods
within which or the dates on which, the prices at which and the terms and
conditions upon which Debt Securities of the series shall be redeemed, repaid
or purchased, in whole or in part, pursuant to such obligation;
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(7) the period or periods within which or the date or dates
on which, the price or prices at which and the terms and conditions upon which
Debt Securities of the series may be redeemed, if any, in whole or in part, at
the option of the Company or otherwise;
(8) if the coin or Currency in which the Debt Securities
shall be issuable is in Dollars, the denominations of such Debt Securities if
other than denominations of $1,000 and any integral multiple thereof (except as
provided in Section 304); provided, that if the Currency in which Debt
Securities which are Bearer Securities shall be issuable in Dollars, such Debt
Securities may only be issued in denominations of $5,000 or integral multiples
thereof;
(9) whether the Debt Securities of the series are to be
issued as Discount Securities and the amount of discount with which such Debt
Securities may be issued and, if other than the principal amount thereof, the
portion of the principal amount of Debt Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(10) provisions, if any, for the defeasance of Debt
Securities of the series;
(11) whether Debt Securities of the series are to be issued
as Registered Securities or Bearer Securities or both, and, if Bearer
Securities are issued, the applicable certification procedures pursuant to
Section 304(d), whether Coupons will be attached thereto, whether Bearer
Securities of the series may be exchanged for Registered Securities of the
series, or whether Registered Securities of the series may be exchanged for
Bearer Securities of the series, as provided in Section 305(b) or otherwise and
the circumstances under which and the place or places at which any exchanges,
if permitted, may be made;
(12) whether the provisions of Section 1202 and 1302 or other
provisions for payment of additional amounts shall apply and, if, other
provisions shall apply, such other provisions, whether a procedure other than
that set forth in Section 304(b) shall apply and, if so, such other procedure,
and if the procedure set forth in Section 304(b) shall apply, the forms of
certifications to be delivered under such procedure;
(13) if other than Dollars, the Foreign Currency or
Currencies in which Debt Securities of the series shall be denominated, or in
which payment of the principal of (and/or premium, if any) and/or interest on
the Debt Securities of the series may be made, and the particular provisions
applicable thereto and, if applicable, the amount of Debt Securities of the
series which entitles the Holder of a Debt Security of the series or proxy to
one vote for purposes of Section 905;
(14) if the principal of (and premium, if any) or interest on
Debt Securities of the series are to be payable, at the election of the Company
or a Holder thereof, in a Currency other than that in which the Debt Securities
are denominated or payable without such election, in addition or in lieu of the
provisions of Section 310, the period or periods within which and the terms and
conditions upon which, such election may be made and the time and the manner of
determining the exchange rate or rates between the Currency or Currencies in
which the Debt Securities are denominated or payable without such election and
the Currency or Currencies in which the Debt Securities are to be paid if such
election is made;
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(15) the date as of which any Bearer Securities of the series
and any global Debt Security representing any Outstanding Debt Securities of
the series shall be dated if other than the date of original issuance of the
first Debt Security of the Series to be issued;
(16) if the amount of payments of principal of (and premium,
if any) or interest on the Debt Securities of the series may be determined with
reference to an index including, but not limited to, an index based on a
Currency or Currencies other than that in which the Debt Securities are
denominated or payable, or any other type of index, the manner in which such
amounts shall be determined;
(17) if the Debt Securities of the series denominated or
payable in a Foreign Currency, any other terms concerning the payment of
principal of (and premium, if any) or any interest on such Debt Securities
(including the Currency or Currencies of payment thereof);
(18) the designation of the original Exchange Rate Agent;
(19) the applicable Overdue Rate, if any;
(20) if the Debt Securities of the series do not bear
interest, the applicable dates for purposes of Section 701;
(21) any addition to, or modification or deletion of, any
Events of Default or covenants provided for with respect to Debt Securities of
the series; and
(22) if Bearer Securities of the series are to be issued, in
addition to or in substitution for the provisions set forth in Sections 303,
304 and 305, (x) whether interest in respect of any portion of a temporary Debt
Security in global form (representing all of the Outstanding Bearer Securities
of the series) payable in respect of any Interest Payment Date prior to the
exchange of such temporary Debt Security for definitive Debt Securities of the
series shall be paid to any clearing organization with respect to the portion
of such temporary Debt Security held for its account and, in such event, the
terms and conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be credited to
the Persons entitled to interest payable on such Interest Payment Date, and (y)
the terms upon which interests in such temporary Debt Security in global form
may be exchanged for interests in a permanent Global Note or for definitive
Debt Securities of the series and the terms upon which interests in a permanent
Global Note, if any, may be exchanged for definitive Debt Securities of the
series;
(23) whether the Debt Securities of the series shall be issued
in whole or in part in the form of one or more Global Notes and, in such case,
the U.S. Depositary or any Common Depositary for such Global Note or Notes; and
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially
identical except as to denomination, rate of interest, Stated Maturity and the
date from which interest, if any, shall
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accrue, which, as set forth above, may be determined by the Company from time
to time as to Debt Securities of a series if so provided in or established
pursuant to the authority granted in a Board Resolution or in any such
indenture supplemental hereto, and except as may otherwise be provided in or
pursuant to such Board Resolution and (subject to Section 303) set forth in
such Officers' Certificate, or in any such indenture supplemental hereto. All
Debt Securities of any one series need not be issued at the same time, and
unless otherwise provided, a series may be reopened for issuance of additional
Debt Securities of such series.
If any of the terms of a series of Debt Securities is
established in or pursuant to a Board Resolution, a copy of such Board
Resolution shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 302. Denominations.
In the absence of any specification pursuant to Section 301
with respect to Debt Securities of any series, the Debt Securities of such
series shall be issuable only as Registered Securities in denominations of
$1,000 and any integral multiple thereof and shall be payable only in Dollars.
SECTION 303. Execution, Authentication, Delivery and
Dating.
The Debt Securities and the Coupons, if any, of any series
shall be executed on behalf of the Company by its Chairman, its President, one
of its Vice Presidents or its Treasurer, under its corporate seal reproduced
thereon and attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers may be manual or facsimile.
Debt Securities and Coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Debt Securities and Coupons or did not hold such offices at the date of
such Debt Securities and Coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debt Securities, with
appropriate Coupons, if any, of any series, executed by the Company, to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Debt Securities and Coupons and the Trustee
in accordance with the Company Order, which shall state whether such Debt
Securities, if they are Bearer Securities, were purchased during a Restricted
Period, shall authenticate and make available for delivery such Debt Securities
and Coupons: provided, however, that no Bearer Security that has been sold
during the Restricted Period shall be mailed or otherwise delivered to any
location in the United States; and provided, further, that a Bearer Security
may be delivered by the Company in definitive form only if the Person entitled
to receive such Bearer Security shall have furnished to the Company a
certificate substantially in the form set forth in Exhibit A to this Indenture.
If all the Debt Securities of any one series are not to be issued at one time
and if a Board Resolution or supplemental indenture relating to such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance
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<PAGE> 26
of such Debt Securities such as interest rate, Stated Maturity, date of
issuance and date from which interest, if any, shall accrue. If any Debt
Security shall be represented by a permanent Global Note, then, for purposes of
this Section and Section 304, the notation of a beneficial owner's interest
therein upon original issuance of such Debt Security or upon exchange of a
portion of a temporary Global Note shall be deemed to be delivery in definitive
form by the Company of such beneficial owner's interest in such permanent
Global Note. Except as permitted by Section 306 or 307, the Trustee shall not
authenticate and deliver any Bearer Security unless all Coupons for interest
then matured have been detached and cancelled.
Subject to the second succeeding paragraph, the Trustee shall
be entitled to receive, and (subject to Section 601) shall be fully protected
in relying upon, prior to the authentication and delivery of the Debt
Securities and Coupons of such series, (i) the supplemental indenture or the
Board Resolution by or pursuant to which the form and terms of such Debt
Securities and Coupons have been approved, (ii) an Officers' Certificate as to
the absence of any event which is, or after notice or lapse of time or both
would become, an Event of Default, and (iii) an Opinion of Counsel stating
that:
(1) all instruments furnished by the Company to the Trustee
in connection with the authentication and delivery of such Debt Securities and
Coupons conform to the requirements of this Indenture and, in the case of an
underwritten offering of such Debt Securities, constitute sufficient authority
hereunder for the Trustee to authenticate and deliver such Debt Securities and
Coupons, or, in the case of a continuous offering of such Debt Securities, upon
delivery or such additional instruments specified in the Company Order
delivered pursuant to this Section 303, will constitute sufficient authority
hereunder for the Trustee to authenticate and deliver such Debt Securities and
Coupons;
(2) in the case of an underwritten offering of a series of
Debt Securities, the forms and terms of such Debt Securities and Coupons have
been established in conformity with the provisions of this Indenture, or, in
the case of a continuous offering of a series of Debt Securities, the forms and
terms of any such Debt Security, when completed in accordance with the Company
Order delivered pursuant to this Section 303, will have been established in
conformity with the provisions of this Indenture;
(3) in the event that the forms or terms of such Debt
Securities and Coupons have been established in a supplemental indenture, the
execution and delivery of such supplemental indenture has been duly authorized
by all necessary corporate action of the Company, such supplemental indenture
has been duly executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, constitutes the legally
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and subject to the availability of
the equitable remedies of specific performance or injunctive relief being
subject to the discretion of the court before which any proceeding may be
brought and subject to such other exceptions or qualifications as counsel shall
reasonably request;
(4) the execution and delivery of such Debt Securities and
Coupons have been duly authorized by all necessary corporate action of the
Company; in the case of an underwritten
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offering of a series of Debt Securities, such Debt Securities and Coupons have
been duly executed by the Company, or, in the case of a continuous offering of
a series of Debt Securities, when the terms of any such Debt Security are
completed in accordance with the Company Order delivered pursuant to this
Section 303 and such Debt Security is duly executed by the Company, and, in
either case, assuming due authentication by the Trustee and delivery by the
Company, such Debt Securities constitute, and will constitute, as the case may
be, the legally valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, entitled to the benefit of
the Indenture, subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and subject to the availability of the equitable
remedies of specific performance or injunctive relief being subject to the
discretion of the court before which any proceeding may be brought and subject
to such other exceptions or qualifications as counsel shall reasonably request;
(5) all laws and requirements in respect of the execution and
delivery by the Company of such Debt Securities have been complied with; and
(6) the amount of Debt Securities Outstanding of such series,
together with the amount of the Debt Securities to be authenticated pursuant to
the Company Order delivered pursuant to this Section 303, does not exceed any
limit established under the terms of this Indenture on the amount of Debt
Securities of such series that may be authenticated and delivered.
The Trustee shall not be required to authenticate such Debt
Securities and Coupons if the issuance of such Debt Securities and Coupons
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Debt Securities and this Indenture in a manner which is
not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
second preceding paragraph, if all Debt Securities of a series are to be
offered on a continuous basis, it shall not be necessary to deliver the
Officers' Certificate otherwise required pursuant to Section 301, the Company
Order or the Opinion of Counsel otherwise required pursuant to such second
preceding paragraph at or prior to the time of authentication of each such Debt
Security if such documents are delivered at or prior to the time of
authentication upon original issuance of the first such Debt Security to be
issued.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security (including any temporary, or permanent or
definitive Bearer Security in global form) shall be dated as of the date of
original issuance of the first Debt Security of such series to be issued,
except as otherwise provided pursuant to Section 301 with respect to the Bearer
Securities of any series.
No Debt Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Debt Security a certificate of authentication substantially in one of the
forms provided for herein duly executed by the Trustee or by an Authenticating
Agent, and such certificate upon any Debt Security shall be conclusive
evidence, and the only evidence, that such Debt Security has been duly
authenticated and
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delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Debt Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for
cancellation as provided in Section 308 together with a written statement
(which need not comply with Section 102) stating that such Debt Security has
never been issued and sold by the Company, for all purposes of this Indenture
such Debt Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Debt Securities; Exchange of
Temporary Global Notes for Definitive Bearer
Securities.
(a) Pending the preparation of definitive Registered
Securities of any series, the Company may execute, and upon Company Order the
Trustee shall authenticate and make available for delivery, temporary
Registered Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination for
Registered Securities of such series, substantially of the tenor of the
definitive Registered Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Registered Securities may determine, as conclusively
evidenced by their execution of such Registered Securities. Every such
temporary Registered Security shall be executed by the Company and shall be
authenticated and made available for delivery by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Registered Securities in lieu of which they are issued. In the
case of any series issuable as Bearer Securities, such temporary Debt
Securities may be in global form, representing such of the Outstanding Debt
Securities of such series as shall be specified therein. Except in the case of
temporary Debt Securities in global form (which shall be exchanged in
accordance with the provisions of the following paragraphs), if temporary Debt
Securities of any series are issued, the Company will cause definitive Debt
Securities of such series to be prepared without unreasonable delay. After the
preparation of definitive Debt Securities of such series, the temporary Debt
Securities of such series shall be exchangeable for definitive Debt Securities
of such series, of a like Stated Maturity and with like terms and provisions,
upon surrender of the temporary Debt Securities of such series at the office or
agency of the Company in a Place of Payment for such series, without charge to
the Holder, except as provided in Section 305 in connection with a transfer.
Upon surrender for cancellation of any one or more temporary Debt Securities of
any series (accompanied by any unmatured Coupons), the Company shall execute
and, upon Company Order, the Trustee shall authenticate and make available for
delivery in exchange therefor a like principal amount of definitive Debt
Securities of the same series of authorized denominations and of a like Stated
Maturity and like terms and provisions; provided, however, unless otherwise
specified pursuant to Section 301, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided,
further, that a definitive Bearer Security (including a definitive Bearer
Security in global form) shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section 303. Until
so exchanged, the temporary Registered Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Registered Securities of such series.
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(b) Unless otherwise specified pursuant to Section 301, all
Bearer Securities of a series shall be initially issued in the form of a single
temporary Bearer Security in global form (a "temporary Global Note"). The
Company shall execute, and upon Company Order the Trustee shall authenticate,
any temporary Global Note and any permanent Bearer Security in global form (as
described below, a "permanent Global Note") upon the same conditions and in
substantially the same manner, and with the same effect, as definitive Bearer
Securities, and the temporary or permanent Global Note, as the case may be,
shall, unless otherwise specified therein, be delivered by the Trustee in
accordance with the Company Order to the London office of a depositary or
common depositary (the "Common Depositary"), for the benefit of the Euro-clear
Operator or CEDEL, as the case may be, for credit to the account of the Company
(in the case of sales of Bearer Securities by the Company directly to
investors) or the managing underwriter (in the case of sales of Bearer
Securities by the Company to underwriters) or such other accounts as the
Company or the managing underwriter, respectively, may direct. On or after the
date which is 40 days after the closing of the sale of Debt Securities (the
"Exchange Date"), the Debt Securities represented by such temporary Global Note
may be exchanged for definitive Debt Securities (subject to the second
succeeding paragraph) or Debt Securities to be represented thereafter by one or
more permanent Global Notes without interest coupons. On or after the Exchange
Date such temporary Global Note shall be surrendered by the Common Depositary
to the Trustee, as the Company's agent for such purpose, at its principal
office in London (or at such other place specified outside the United States
pursuant to Section 301) and following such surrender, the Trustee shall (1)
endorse the temporary Global Note to reflect the reduction of its principal
amount by an equal aggregate principal amount of such permanent Global Note,
(2) endorse the applicable permanent Global Note, if any, to reflect the
initial amount, or an increase in the amount of Debt Securities represented
thereby, (3) manually authenticate such definitive Debt Securities or such
permanent Global Note, as the case may be, (4) deliver such definitive Debt
Securities or such permanent Global Note to the Common Depositary to be held
outside the United States for the accounts of the Euro-clear Operator or CEDEL,
as the case may be, for credit to the respective accounts at Euro-clear
Operator or CEDEL, as the case may be, designated by or on behalf of the
beneficial owners of such Debt Securities (or to such other accounts as they
may direct) and (5) redeliver such temporary Global Note to the Common
Depositary, unless such temporary Global Note shall have been cancelled in
accordance with Section 308 hereof; provided, however, that, unless otherwise
specified in such temporary Global Note, in the case of definitive Debt
Securities or a Permanent Global Note to be delivered in bearer form, upon such
presentation by the Common Depositary, such temporary Global Note shall be
accompanied by a certificate dated the Exchange Date, or a subsequent date and
signed by the Euro-clear Operator, as to the portion of such temporary Global
Note held for its account then to be exchanged for definitive Debt Securities
or one or more permanent Global Notes, as the case may be, and a certificate
dated the Exchange Date or a subsequent date and signed by CEDEL, as to the
portion of such temporary Global Note held for its account then to be exchanged
for definitive Debt Securities, or one or more permanent Global Notes, as the
case may be, each substantially in the form set forth in Exhibit B to this
Indenture. Each certificate substantially in the form of Exhibit B hereto of
the Euro-clear Operator or CEDEL, as the case may be, shall be based on
certificates of the account holders listed in the records of the Euro-clear
Operator or CEDEL, as the case may be, as being entitled to all or any portion
of the applicable temporary Global Note. An account holder of the Euro-clear
Operator or CEDEL, as the case may be, desiring to effect the exchange of an
interest in a temporary Global Note for an interest in definitive Debt
Securities or one or more permanent Global Notes shall instruct
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the Euro-clear Operator or CEDEL, as the case may be, to request such exchange
on its behalf and shall deliver to the Euro-clear Operator or CEDEL, as the
case may be, a certificate substantially in the form of Exhibit A hereto and
dated no earlier than 15 days prior to the Exchange Date. Until so exchanged,
temporary Global Notes shall in all respects be entitled to the same benefits
under this Indenture as definitive Debt Securities and permanent Global Notes
of the same series authenticated and delivered hereunder, except as to payment
of interest, if any. The delivery to the Trustee by the Euro-clear Operator or
CEDEL of any certificate substantially in the form of Exhibit B hereto may be
relied upon by the Company and the Trustee as conclusive evidence that a
corresponding certificate or certificates has or have been delivered to the
Euro-clear Operator or CEDEL, as the case may be, pursuant to the terms of this
Indenture.
On or prior to the Exchange Date, the Company shall deliver to
the Trustee definitive Debt Securities in aggregate principal amount equal to
the principal amount of such temporary Global Note, executed by the Company. At
any time, on or after the Exchange Date, upon 30 days' notice to the Trustee by
the Euro-clear Operator or CEDEL, as the case may be, acting at the request of
or on behalf of the beneficial owner, a Debt Security represented by a
temporary Global Note or a permanent Global Note, as the case may be, may be
exchanged, in whole or from time to time in part, for definitive Debt
Securities without charge and the Trustee shall, upon Company Order,
authenticate and make available for delivery, in exchange for each portion of
such temporary Global Note or such permanent Global Note, an equal aggregate
principal amount of definitive Debt Securities of the same series of authorized
denominations and of a like Stated Maturity and with like terms and conditions,
as the portion of such temporary Global Note or such permanent Global Note to
be exchanged, which, unless the Debt Securities of the series are not issuable
both as Bearer Securities and as Registered Securities, as contemplated by
Section 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 definitive Bearer Securities shall be
delivered in exchange for a portion of the temporary Global Note only in
compliance with the requirements of the second preceding paragraph. On or prior
to the forty-fifth day following receipt by the Trustee of such notice with
respect to a Debt Security (and receipt of appropriate certification referred
to in the second preceding paragraph, in the case of definitive Bearer
Securities to be received in exchange for a portion of the temporary Global
Note), or, if such day is not a Business Day, the next succeeding Business Day,
the temporary Global Note or the permanent Global Note, as the case may be,
shall be surrendered by the Common Depositary to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or from time to time in part,
for definitive Debt Securities without charge following such surrender, upon
the request of the Euro-clear Operator or CEDEL, as the case may be, and the
Trustee shall (1) endorse the applicable temporary Global Note or the permanent
Global Note to reflect the reduction of its principal amount by the aggregate
principal amount of such Debt Security, (2) cause the terms of such Debt
Security and Coupons, if any, to be entered on a definitive Debt Security, (3)
manually authenticate such definitive Debt Security, and (4) deliver such
definitive Debt Security outside the United States to the Euro-clear Operator
or CEDEL, as the case may be, for or on behalf of the beneficial owner thereof,
in exchange for a portion of such temporary Global Note or the permanent Global
Note. Unless otherwise specified in such temporary Global Note or the
permanent Global Note, any such exchange shall be made free of charge to the
beneficial owners of such temporary Global Note or the permanent Global Note,
except that a Person receiving definitive
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Debt Securities must bear the cost of insurance, postage, transportation and
the like in the event that such Person does not take delivery of such
definitive Debt Securities in person at the offices of the Euro-clear Operator
or CEDEL. Definitive Securities in bearer form to be delivered in exchange for
any portion of a temporary Global Note or the permanent Global Note shall be
delivered only outside the United States. Notwithstanding the foregoing, in the
event of redemption or acceleration of all or any part of a temporary Global
Note prior to the Exchange Date, a permanent Global Note or definitive Bearer
Securities, as the case may be, will not be issuable in respect of such
temporary Global Note or such portion thereof, and payment thereon will instead
be made as provided in such temporary Global Note.
Until exchanged in full as hereinabove provided, any temporary
Global Note or the permanent Global Note shall in all respects be entitled to
the same benefits under this Indenture as definitive Debt Securities of the
same series and tenor authenticated and delivered hereunder, except that,
unless otherwise specified as contemplated by Section 301, interest payable on
such temporary Global Note on an Interest Payment Date for Debt Securities of
such series occurring prior to the date of receipt by the Trustee of the
certification described in the fourth preceding paragraph of this Section
304(b) substantially in the form of Exhibit B hereto shall be payable to the
Euro-clear Operator or CEDEL on such Interest Payment Date only upon delivery
by the Euro-clear Operator or CEDEL to the Trustee of a certificate or
certificates substantially in the form set forth in Exhibit B to this
Indenture, for credit without further interest on or after such Interest
Payment Date to the respective accounts of the Persons who are the beneficial
owners of such temporary Global Note on such Interest Payment Date and who have
each delivered to the Euro-clear Operator or CEDEL, as the case may be, a
certificate substantially in the form set forth in Exhibit A to this Indenture.
Any definitive Bearer Security authenticated and delivered by the Trustee in
exchange for a portion of a temporary Global Note or the permanent Global Note
shall not bear a coupon for any interest which shall theretofore have been duly
paid by the Trustee to the Euro-clear Operator or CEDEL, or by the Company to
the Trustee in accordance with the provisions of this Section 304.
(c) If the Company shall establish pursuant to Section 301
that the Registered Securities of a series are to be issued in whole or in part
in the form of one or more Global Notes, then the Company shall execute and the
Trustee shall, in accordance with Section 303 and the Company Order with
respect to such series, authenticate and make available for delivery one or
more Global Notes in temporary or permanent form that (i) shall represent and
shall be denominated in an amount equal to the aggregate principal amount of
the Outstanding Debt Securities of such series to be represented by one or more
Global Notes, (ii) shall be registered in the name of the U.S. Depositary for
such Global Note or Notes or the nominee of such depositary, (iii) shall be
delivered by the Trustee to such depositary or pursuant to such depositary's
instruction and (iv) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for Debt Securities in
definitive form, this Debt Security may not be transferred except as a whole by
the Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary."
Notwithstanding any other provision of this Section or Section
305, unless and until it is exchanged in whole or in part for Registered
Securities in definitive form, a Global
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Note representing all or a portion of the Registered Securities of a series may
not be transferred except as a whole by the U.S. Depositary for such series to
a nominee of such depositary or by a nominee of such depositary to such
depositary or another nominee of such depositary or by such depositary or any
such nominee to a successor U.S. Depositary for such series or a nominee of
such successor depositary.
If at any time the U.S. Depositary for the Debt Securities of
a series notifies the Company that it is unwilling or unable to continue as
U.S. Depositary for the Debt Securities of such series or if at any time the
U.S. Depositary for Debt Securities of a series shall no longer be registered
or in good standing under the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation, the Company shall appoint a successor
U.S. Depositary with respect to the Debt Securities of such series. If a
successor U.S. Depositary for the Debt Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Debt Securities of such series, will authenticate and make available
for delivery, Registered Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Note or
Notes representing such series in exchange for such Global Note or Notes.
The Company may at any time and in its sole discretion
determine that the Registered Securities of any series issued in the form of
one or more Global Notes shall no longer be represented by such Global Note or
Notes. In such event, the Company will execute, and the Trustee, upon receipt
of a Company Order for the authentication and delivery of definitive Debt
securities of such series, will authenticate and make available for delivery,
Registered Securities of such series in definitive form and in an aggregate
principal amount equal to the principal amount of the Global Note or Notes
representing such series in exchange for such Global Note or Notes.
If specified by the Company pursuant to Section 301 with
respect to Registered Securities of a series, the U.S. Depositary for such
series of Registered Securities may surrender a Global Note for such series of
Debt Securities in exchange in whole or in part for Registered Securities or
such series in definitive form on such terms as are acceptable to the Company
and such depositary. Thereupon, the Company shall execute and the Trustee shall
authenticate and make available for delivery, without charge,
(i) to each Person specified by the U.S. Depositary a new
Registered Security or Securities of the same series, of any authorized
denomination as requested by such Person in aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the
Global Note; and
(ii) to the U.S. Depositary a new Global Note in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Note and the aggregate principal
amount of Registered Securities delivered to Holders thereof.
Upon the exchange of a Global Note for Registered Securities
in definitive form, such Global Note shall be cancelled by the Trustee. Debt
Securities issued in exchange for a
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Global Note pursuant to this subsection (c) shall be registered in such names
and in such authorized denominations as the U.S. Depositary for such Global
Note, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall make such Debt
Securities available for delivery to the persons in whose names such Debt
Securities are so registered.
(d) With respect to Exhibits A and B to this Indenture, the
Company may, in its discretion and if required or desirable under applicable
law, substitute one or more other forms of such exhibits for such exhibits,
eliminate the requirement that any or all certificates be provided, or change
the time that any certificate may be required, provided that such substitute
form or forms or notice of elimination or change of such certification
requirement have theretofore been delivered to the Trustee with a Company
Request and such form or forms, elimination or change is reasonably acceptable
to the Trustee.
SECTION 305. Registration, Transfer and Exchange.
(a) The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the registers maintained in such office and
in any other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of transfers and
exchanges of Registered Securities. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Registered Securities and registering
- -transfers and exchanges of Registered Securities as herein provided; provided,
however, that the Company may appoint co-Security Registrars.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained for
such purpose, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, in the name of the designated transferee, one or
more new Registered Securities of the same series of like aggregate principal
amount of such denominations as are authorized for Registered Securities of
such series bearing a number not contemporaneously outstanding and of a like
Stated Maturity and with like terms and conditions.
At the option of the Holder, Registered Securities of any
series (except Global Notes) may be exchanged for other Registered Securities
of the same series of like aggregate principal amount and of a like Stated
Maturity and with like terms and conditions, upon surrender of the Registered
Securities to be exchanged at such office or agency. Whenever any Registered
Securities are surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the Registered
Securities which the Holder making the exchange is entitled to receive.
(b) If and to the extent specified pursuant to Section 301,
the provisions of this Section 305(b) shall be applicable to Debt Securities of
any series which are Bearer Securities. At the option of the Holder thereof, to
the extent permitted by law, any Bearer Security of any series which by its
terms is registrable as to principal and interest may be exchanged for a
Registered Security of such series of like aggregate principal amount and of
like Stated Maturity
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and with like terms and conditions upon surrender of such Bearer Security at
the Corporate Trust Office or at any other office or agency of the Company
designated pursuant to Section 301 for the purpose of making any such
exchanges. Any Coupon Security surrendered for exchange shall be surrendered
with all unmatured Coupons and any matured Coupons in default attached thereto.
If the Holder of a Bearer Security is unable to produce any such unmatured
Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company or the Paying Agent in an amount equal to the face
amount of such missing Coupon or Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if there is
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to any Paying Agent any such missing Coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that except as otherwise
provided in Section 1203, interest represented by Coupons shall be payable only
upon presentation and surrender of these coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in exchange
for a Registered Security of the same series and of a like Stated Maturity and
with like terms and conditions after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office or agency
on the related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date or proposed date for payment, as the case may be (or, if such
Coupon is so surrendered with such Bearer Security, such Coupon shall be
returned to the person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
the Registered Security issued in exchange for such Bearer Security, but will
be payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture. The Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Registered Security or
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer
Securities for Registered Securities will be subject to the provisions of
United States income tax laws and regulations applicable to Debt Securities in
effect at the time of such exchange.
(c) Except as otherwise specified pursuant to Sections 301 and
1101, in no event may Registered Securities, including Registered Securities
received in exchange for Bearer Securities, be exchanged for Bearer Securities.
(d) All Debt Securities issued upon any transfer or exchange
of Debt Securities shall be valid obligations of the Company, evidence the same
debt, and entitled to the same benefits under this Indenture, as the Debt
Securities surrendered for such transfer or exchange.
Every Registered Security presented or surrendered for
transfer or exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a
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written instrument of transfer in form satisfactory to the Company, the Trustee
and the Security Registrar, duly executed, by the Holder thereof or his
attorney duly authorized in writing.
No service charge will be made for any transfer or exchange of
Debt Securities except as provided in Section 304(b) or 306. 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, transfer or
exchange of Debt Securities, other than those expressly provided in this
Indenture to be made at the Company's own expense or without expense or without
charge to the Holders.
The Company shall not be required (i) to register, transfer or
exchange Debt Securities of any series during a period beginning at the opening
of business 15 days before the day of the transmission of a notice of
redemption of Debt Securities of such series selected for redemption under
Section 1304 and ending at the close of business on the day of such
transmission, or (ii) to register, transfer or exchange any Debt Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Debt Security being redeemed in part; provided, however, that, unless
otherwise specified pursuant to Section 301, if any Bearer Securities of any
series which pursuant to Section 305(b) or as otherwise provided pursuant to
Section 301 are exchangeable for Registered Securities are called for
redemption pursuant to Section 1302, such Bearer Security, to the extent
permitted by applicable law, may be exchanged for one or more Registered
Securities of such series as provided in Section 305(b) or otherwise during the
period preceding any Redemption Date.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt
Securities.
If (i) any mutilated Debt Security or any mutilated Coupon
with the Coupon Security to which it appertains (and all unmatured Coupons
attached thereto) is surrendered to the Trustee at its Corporate Trust Office
(in the case of Registered Securities) or at its principal London office (in
the case of Bearer Securities), or (ii) the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any Debt
Security or any Coupon, and there is delivered to the Company and the Trustee
such security or indemnity as may be required by them to save each of them and
any Paying Agent harmless, and neither the Company nor the Trustee receives
notice that such Debt Security or Coupon has been acquired by a bona fide
purchaser, then the Company shall execute and upon Company Request the Trustee
shall authenticate and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Debt Security or in exchange
for the Coupon Security to which such mutilated, destroyed, lost or stolen
coupon appertained, a new Debt Security of the same series of like Stated
Maturity and with like terms and conditions and like principal amount, bearing
a number not contemporaneously Outstanding, and, in the case of a Coupon
Security, with such Coupons attached thereto that neither gain nor loss in
interest shall result from such exchange or substitution.
In case any such mutilated, destroyed, lost or stolen Debt
Security or coupon has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Debt Security, pay the
amount due on such Debt Security or Coupon in accordance with its terms;
provided, however, that principal of (and premium, if any) and any interest on
Bearer Securities shall, except as otherwise provided in Section 1203, be
payable only
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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 Debt Security under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debt Security or Coupon of any series issued
pursuant to this Section shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security or Coupon shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Debt Securities or Coupons of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Debt
Securities or Coupons.
SECTION 307. Payment of Interest; Interest Rights
Preserved.
(a) Interest on any Registered Security which is payable and
is punctually paid or duly provided for on any Interest Payment Date shall be
paid to the Person in whose name such Registered Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest notwithstanding the cancellation of such
Registered Security upon any transfer or exchange subsequent to the Regular
Record Date. Payment of interest on Registered Securities shall be made at the
offices of the Paying Agent or Paying Agents specified pursuant to Section 301
or, at the option of the Company, by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or, if,
and to the extent, provided pursuant to Section 301, at the option of the
Registered Holder by wire transfer to an account designated by the Registered
Holder.
(b) Subject to the certification requirements set forth in
the fifth paragraph of Section 304(b), interest on any Coupon Security which is
payable and is punctually paid or duly provided for on any Interest Payment
Date shall be paid to the Holder of the Coupon which has matured on such
Interest Payment Date upon surrender of such Coupon on such Interest Payment
Date at the principal London office of the Trustee or at such other Place of
Payment outside the United States specified pursuant to Section 301.
Subject to the certification requirements set forth in the
fifth paragraph of Section 304(b), interest on any Bearer Security (other than
a Coupon Security) which is payable and is punctually paid or duly provided for
on any Interest Payment Date shall be paid to the Holder of the Bearer Security
upon presentation of such Bearer Security and notation thereon on such Interest
Payment Date at the principal London office of the Trustee or at such other
Place of Payment outside the United States specified pursuant to Section 301.
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Unless otherwise specified pursuant to Section 301, at the
direction of the Holder of any Bearer Security or Coupon payable in Dollars,
payment on such Bearer Security or Coupon will be made by check drawn on a bank
in The City of New York or, if agreeable to the Trustee, by wire transfer to a
Dollar account maintained by such Holder outside the United States. If such
payment at the offices of all Paying Agents outside the United States becomes
illegal or is effectively precluded because of the imposition of exchange
controls or similar restrictions on the full payment or receipt of such amounts
in Dollars, the Company will appoint an office or agent in the United States at
which such payment may be made. Unless otherwise specified pursuant to Section
301, at the direction of the Holder of any Bearer Security or Coupon payable in
a Foreign Currency, payment on such Bearer Security or Coupon will be made by a
check drawn on a bank outside the United States or by wire transfer to an
appropriate account maintained by such Holder outside the United States. Except
as provided in this paragraph, no payment on any Bearer Security or Coupon will
be made by mail to an address in the United States or by wire transfer to an
account in the United States.
(c) Any interest on any Debt Security which is payable but is
not punctually paid or duly provided for on any Interest Payment Date (herein
called "Defaulted Interest") shall, if such Debt Security is a Registered
Security, forthwith cease to be payable to the Registered Holder on the
relevant Regular Record Date by virtue of his having been such Registered
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each such Registered
Security and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money in the Currency or Currency
unit in which the Debt Securities of such series are payable (except as
otherwise specified pursuant to Section 301 or 310) 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 date 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 the Holders of such
Registered Securities at their addresses as they appear in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause
(2).
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(2) The Company may make payment of any Defaulted Interest on
Registered Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Registered Securities may
be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the Trustee.
(d) Any Defaulted Interest payable in respect of Bearer
Securities of any series shall be payable pursuant to such procedures as may be
satisfactory to the Trustee in such manner that there is no discrimination
between the Holders of Registered Securities (if any) and Bearer Securities of
such series, and notice of the payment date therefor shall be given by the
Trustee, in the name and at the expense of the Company, in the manner provided
in Section 105 not more than 25 days and not less than 20 days prior to the
date of the proposed payment.
(e) Subject to the foregoing provisions of this Section, each
Debt Security delivered under this Indenture upon transfer of or in exchange
for or in lieu of any other Debt Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debt
Security.
SECTION 308. Cancellation.
Unless otherwise specified pursuant to Section 301 for Debt
Securities of any series, all Debt Securities surrendered for payment,
redemption, transfer, exchange or credit against any sinking fund and all
Coupons surrendered for payment or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee. All Registered Securities
and matured Coupons so delivered shall be promptly cancelled by the Trustee.
All Bearer Securities and unmatured Coupons so delivered shall be held by the
Trustee and, upon instruction by Company Order, shall be cancelled or held for
reissuance. Bearer Securities and unmatured Coupons held for reissuance may be
reissued only in exchange for Bearer Securities of the same series and of like
Stated Maturity and with like terms and conditions pursuant to Section 305 or
in replacement of mutilated, lost, stolen or destroyed Bearer Securities of the
same series and of like Stated Maturity and with like terms and conditions or
the related Coupons pursuant to Section 306. All Bearer Securities and
unmatured Coupons held by the Trustee pending such cancellation or reissuance
shall be deemed to be delivered for cancellation for all purposes of this
Indenture and the Securities. The Company may at any time deliver to the
Trustee for cancellation any Debt Securities or Coupons previously
authenticated and delivered hereunder which the Company 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 Debt Securities previously
authenticated hereunder which the Company has not issued, and all Debt
Securities or Coupons so delivered shall be promptly cancelled by the Trustee.
No Debt Securities or coupons shall be authenticated in lieu of or in exchange
for any Debt Securities or Coupons cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Debt Securities
and Coupons held by the Trustee shall be destroyed by the Trustee unless, by
Company Order or Company Request, the Company directs the return to it of such
cancelled Debt Securities and Coupons. The acquisition of any Debt Securities
or Coupons by the Company shall not operate as a redemption or satisfaction of
the indebtedness represented thereby unless and until such Debt Securities or
Coupons are surrendered to the Trustee for
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cancellation. In the case of any temporary Global Note which shall be destroyed
if the entire aggregate principal amount of the Debt Securities represented
thereby has been exchanged, the certificate of destruction shall state that all
certificates required pursuant to Section 304 hereof and substantially in the
form of Exhibit B hereto, to be given by the Euro-clear Operator or CEDEL, have
been duly presented to the Trustee by the Euro-clear Operator or CEDEL, as the
case may be. Permanent Global Notes shall not be destroyed until exchanged in
full for definitive Debt Securities or until payment thereon is made in full.
SECTION 309. Computation of Interest.
Except as otherwise specified pursuant to Section 301 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 310. Currency Debt Securities.
(a) Except as otherwise specified pursuant to Section 301 for
Bearer Securities of any series, payment of the principal of (and premium, if
any) and interest on Bearer Securities of such series denominated in any
Currency will be made in such Currency.
(b) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (c) below or the Holders of
which have not made the election provided for in paragraph (c) below, except as
provided in Paragraph (e) below, payment of the principal of (and premium, if
any) and any interest on any Registered Security of such series will be made in
the Currency in which such Registered Security is payable.
(c) It may be provided pursuant to Section 301 with respect
to the Registered Securities of any series that Holders shall have the option,
subject to paragraphs (e) and (f) below, to receive payments of principal of
(and premium, if any) and any interest on such Registered Securities in any of
the Currencies which may be designated for such election by delivering to the
Trustee a written election, to be in form and substance satisfactory to the
Trustee, not later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to receive such
payments in any such Currency, such 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 (but any such change must be made
not later than the close of business on the Election Date immediately preceding
the next payment date to be effective for the payment to be made on such
payment date and no such change or election may be made with respect to
payments to be made on any Registered Security of such series with respect to
which an Event of Default has occurred or notice of redemption has been given
by the Company pursuant to Article Thirteen). Any Holder of any such Registered
Security who shall not have delivered any such election to the Trustee by the
close of business on the applicable Election Date will be paid the amount due
on the applicable payment date in the relevant Currency as provided in
paragraph (b) of this Section 310.
(d) If the election referred to in paragraph (c) above has
been provided for pursuant to Section 301, then not later than the fourth
Business Day after the Election Date for each payment date, the Trustee will
deliver to the Company a written notice specifying, in the
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Currency in which each series of the Registered Securities are payable, the
respective aggregate amounts of principal of (and premium, if any) and any
interest on the Registered Securities to be paid on such payment date,
specifying the amounts so payable in respect of the Registered Securities as to
which the Holders of Registered Securities denominated in any Currency shall
have elected to be paid in another Currency as provided in paragraph (c) above.
The Currency amount receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (c) above shall be
determined by the Exchange Rate Agent on the basis of the applicable Market
Exchange Rate in effect on the second Business Day (the "Valuation Date")
immediately preceding each payment date.
(e) If a Conversion Event occurs with respect to a Foreign
Currency, the ECU or any other Currency unit in which any of the Securities are
denominated or payable other than pursuant to an election provided for pursuant
to paragraph (c) above, then with respect to each date for the payment of
principal of (and premium, if any) and any interest on the applicable Foreign
Currency, the ECU or such other Currency unit occurring after the last date on
which such Foreign Currency, the ECU or such other Currency unit was used (the
"Conversion Date"), the Dollar shall be the Currency of payment for use on each
such payment date. The Dollar amount to be paid by the Company to the Trustee
and by the Trustee or any Paying Agent to the Holders of such Registered
Securities with respect to such payment date shall be the Dollar Equivalent of
the Foreign Currency or, in the case of a Currency unit, the Dollar Equivalent
of the Currency Unit, in each case as determined by the Exchange Rate Agent, if
any, or, if there shall not be an Exchange Rate Agent, then by the Trustee, in
the manner provided in paragraph (g) or (h) below.
(f) If the Holder of a Registered Security denominated in any
Currency shall have elected to be paid in another Currency as provided in
paragraph (c) above, and a Conversion Event occurs with respect to such elected
Currency, such Holder shall receive payment in the Currency in which payment
would have been made in the absence of such election. If a Conversion Event
occurs with respect to the Currency in which payment would have been made in
the absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (e) of this Section 310.
(g) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent, if any, or, if there shall not be an
Exchange Rate Agent, then by the Trustee, and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent, if any, or, if there shall not be an
Exchange Rate Agent, then by the Trustee, and subject to the provisions of
paragraph (i) below, shall be the sum of each amount obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market Exchange
Rate for such Component Currency on the Valuation Date with respect to each
payment.
(i) For purposes of this Section 310 the following terms
shall have the following meanings:
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A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a Component Currency of the relevant Currency
unit, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
were represented in the relevant Currency unit, including, but not
limited to, the ECU, on the Conversion Date. If after the Conversion
Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are
consolidated into a single Currency, the respective Specified Amounts
of such Component Currencies shall be replaced by an amount in such
single Currency equal to the sum of the respective Specified Amounts
of such consolidated Component Currencies expressed in such single
Currency, and such amount shall thereafter be a Specified Amount and
such single Currency shall thereafter be a Component Currency. If
after the Conversion Date any Component Currency shall be divided into
two or more Currencies, the Specified Amount of such Component
Currency shall be replaced by amounts of such two or more Currencies
with appropriate Dollar equivalents at the Market Exchange Rate on the
date of such replacement equal to the dollar equivalent of the
Specified Amount of such former Component Currency at the Market
Exchange Rate on such date, and such amounts shall thereafter be
Specified Amounts and such Currencies shall thereafter be Component
Currencies. If, after the Conversion Date of the relevant Currency
unit, including but not limited to, the ECU, a Conversion Event (other
than any event referred to above in this definition of "Specified
Amount") occurs with respect to any Component Currency of such
Currency unit, the Specified Amount of such Component Currency shall,
for purposes of calculating the Dollar Equivalent of the Currency
Unit, be converted into Dollars at the Market Exchange Rate in effect
on the Conversion Date of such Component Currency.
"Election Date" shall mean the record date with respect to any
payment date, and with respect to the Maturity shall mean the record
date (if within 16 or fewer days prior to the Maturity) immediately
preceding the Maturity, and with respect to any series of Debt
Securities whose record date immediately preceding the Maturity is
more than 16 days prior to the maturity or any series of Debt
Securities for which no record dates are provided with respect to
interest payments, shall mean the date which is 16 days prior to the
Maturity.
(j) All decisions and determinations of the Trustee or the
Exchange Rate Agent, if any, regarding the Dollar Equivalent of the Foreign
Currency, the Dollar Equivalent of the Currency Unit and the Market Exchange
Rate shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company
and all Holders of the Debt Securities denominated or payable in the relevant
Currency. In the event of a Conversion Event with respect to a Foreign
Currency, the Company after learning thereof, will immediately give written
notice thereof to the Trustee (and the Trustee will promptly thereafter give
notice in the manner provided in Section 105 to the Holders) specifying the
Conversion Date. In the event of a Conversion Event with respect to the ECU or
any other Currency in which Securities are denominated or payable, the Company,
after
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learning thereof, will immediately give notice thereof to the Trustee (and the
Trustee will promptly thereafter give written notice in the manner provided in
Section 105 to the Holders) specifying the Conversion Date and the Specified
Amount of each Component Currency on the Conversion Date. In the event of any
subsequent change in any Component Currency as set forth in the definition of
Specified Amount above, the Company, after learning thereof, will similarly
give written notice to the Trustee. The Trustee shall be fully justified and
protected in relying and acting upon information received by it from the
Company and the Exchange Rate Agent, if any, and shall not otherwise have any
duty or obligation to determine such information independently.
(k) For purposes of any provision of the Indenture where the
Holders of Outstanding Debt Securities may perform an Act which requires that a
specified percentage of the Outstanding Debt Securities of all series perform
such Act and for purposes of any decision or determination by the Trustee of
amounts due and unpaid for the principal (and premium, if any) and interest on
the Debt Securities of all series in respect of which moneys are to be
disbursed ratably, the principal of (and premium, if any) and interest on the
Outstanding Debt Securities denominated in a Foreign Currency will be the
amount in Dollars based upon the Market Exchange Rate for Debt Securities of
such series, as of the original issue date of the applicable Debt Securities,
in relation to an entitlement to perform such Act, or as of the date of such
decision or determination by the Trustee, as the case may be.
SECTION 311. Judgments.
If for the purpose of obtaining a judgment in any court with
respect to any obligation of the Company hereunder or under any Debt Security,
it shall become necessary to convert into any other Currency any amount in the
Currency due hereunder or under such Debt Security, then such conversion shall
be made at the Market Exchange Rate as in effect on the date the Company shall
make payment to any Person in satisfaction of such judgment. If pursuant to any
such judgment, conversion shall be made on a date other than the date payment
is made and there shall occur a change between such Market Exchange Rate and
the Market Exchange Rate as in effect on the date of payment, the Company
agrees to pay such additional amounts (if any) as may be necessary to ensure
that the amount paid is equal to the amount in such other Currency which, when
converted at the Market Exchange Rate as in effect on the date of payment or
distribution, is the amount then due hereunder or under such Debt Security. Any
amount due from the Company under this Section 311 shall be due as a separate
debt and is not to be affected by or merged into any judgment being obtained
for any other sums due hereunder or in respect of any Debt Security. In no
event, however, shall the Company be required to pay more in the Currency or
Currency unit due hereunder or under such Debt Security at the Market Exchange
Rate as in effect when payment is made than the amount of Currency stated to be
due hereunder or under such Debt Security so that in any event the Company's
obligations hereunder or under such Debt Security will be effectively
maintained as obligations in such Currency, and the Company shall be entitled
to withhold (or be reimbursed for, as the case may be) any excess of the amount
actually realized upon any such conversion over the amount due and payable on
the date of payment or distribution.
SECTION 312. Exchange Upon Default.
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If default is made in the payments referred to in Sections
1201 or 1202, the Company hereby undertakes that upon presentation and
surrender of a permanent Global Note to the Trustee (or to any other Person or
at any other address as the Company may designate in writing), on any Business
Day on or after the maturity date thereof the Company will issue and the
Trustee will authenticate and deliver to the bearer of such permanent Global
Note duly executed and authenticated definitive Debt Securities with the same
issue date and maturity date as set out in such permanent Global Note.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture, with respect to the Debt Securities of any
series (if all series issued under this Indenture are not to be affected),
shall, upon Company Request, cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of such Debt
Securities herein expressly provided for and rights to receive payments of
principal (and premium, if any) and interest on such Debt Securities) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Debt Securities and the Coupons, if any, of such
series theretofore authenticated and delivered (other than (i) Debt Securities
and Coupons of such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306, (ii) Coupons
appertaining to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is not required or
has been waived under Section 305, (iii) Coupons appertaining to Bearer
Securities called for redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in Section 1307, and (iv)
Debt Securities and Coupons of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 1204) have been delivered to the Trustee for cancellation;
or
(B) all Debt Securities and the Coupons, if any, of such
series not theretofore delivered to the Trustee for cancellation.
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice by the Trustee in the name, and at the expense, of the
Company,
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and the Company, in the case of (i), (ii) or (iii) of this subclause (B), has
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust for such purpose an amount in the Currency in which such Debt
Securities are denominated (except as otherwise provided pursuant to Sections
301 or 310) sufficient to pay and discharge the entire indebtedness on such
Debt Securities for principal (and premium, if any) and interest to the date of
such deposit (in the case of Debt Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be; provided,
however, in the event a petition for relief under the Federal bankruptcy laws,
as now or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law, is filed with respect to the
Company within 91 days after the deposit and the Trustee is required to return
the deposited money to the Company, the obligations of the Company under this
Indenture with respect to such Debt Securities shall not be deemed terminated
or discharged:
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company:
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture with respect to such series have been complied with; and
(4) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Company has received from or there has been
published by the Internal Revenue Service a ruling to the effect that Holders
of the Debt Securities of the series will not recognize income, gain or loss
for Federal income tax purposes as a result of such deposit and discharge.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Company to any Authenticating Agent under Section 614 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 1204, shall survive. If, after the deposit referred to in
Section 401 has been made, (x) the Holder of a Debt Security is entitled to,
and does, elect pursuant to Section 310(c), to receive payment in a Currency
other than that in which the deposit pursuant to Section 401 was made, or (y)
if a Conversion Event occurs with respect to the Currency in which the deposit
was made or elected to be received by the Holder pursuant to Section 310(c),
then the indebtedness represented by such Debt Security shall be fully
discharged to the extent that the deposit made with respect to such Debt
Security shall be converted into the Currency in which such payment is made.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1204, 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 Debt
Securities and Coupons, if any, and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the
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principal (and premium, if any) and interest for whose payment such money has
been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default" wherever used herein with respect to Debt
Securities of any series means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law, pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) the entry of a decree or order for relief in respect
of the Company by a court having jurisdiction in the premises in an involuntary
case or proceeding under any applicable federal or state bankruptcy, insolvency
or other similar law now or hereinafter in effect, or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of the Company or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days;
(2) the commencement by the Company of a voluntary case
under any applicable federal or state bankruptcy, insolvency or other similar
law now or hereinafter in effect, or the consent by the Company to the entry of
a decree or order for relief in an involuntary case under any such law or to
the appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Company or of any substantial
part of the property of the Company, or the making by the Company of an
assignment for the benefit of creditors, or the admission by the Company 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) if specified in the resolution adapted by the Board
of Directors with respect to Debt Securities of a series, any other Event of
Default provided with respect to Debt Securities of such series.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Debt 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
Outstanding Debt Securities of such series may declare the principal amount
(or, if any Debt Securities of such series are Discount Securities, such
portion of the principal amount of such Discount Securities as may be specified
in the terms of such Discount Securities) of all the Debt Securities of such
series to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders) and upon any
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such declaration such principal amount (or specified amount) shall become
immediately due and payable. Upon payment of such amount in the Currency in
which such Debt Securities are denominated (except as otherwise provided
pursuant to Sections 301 or 310), all obligations of the Company in respect of
the payment of principal of the Debt Securities of such series shall terminate.
At any time after such a declaration of acceleration with
respect to Debt Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter provided in this Article, the Holders of a majority in principal
amount of the Outstanding Debt Securities of such series, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum
in the Currency in which such Debt Securities are denominated (except as
otherwise provided pursuant to Sections 301 or 310) sufficient to pay
(A) all overdue installments of interest on all Debt
Securities or all overdue payments with respect to any Coupons of such series;
(B) the principal of (and premium, if any, on) any
Debt Securities of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Debt Securities;
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest on each Debt Security or
upon overdue payments on any Coupons at the Overdue Rate, 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 due if under Section 607 hereof;
provided, however, that all sums payable under this clause (D) shall be paid in
Dollars; and
(2) All Events of Default with respect to Debt Securities of
such series, other than the nonpayment of the principal of Debt Securities of
such series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513. No such rescission and
waiver 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 on any Debt Security or any payment with respect to any Coupons when
such interest or payment becomes due and payable and such default continues
for a period of 30 days,
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(2) default is made in the payment of principal of (or
premium, if any, on) any Debt Security at the Maturity thereof,
(3) default is made in the making or satisfaction of any
sinking fund payment or analogous obligation when the same becomes due pursuant
to the terms of the Debt Securities or any series,
(4) default is made by the Company, subject to the
provisions of Section 1211, in the observance and performance of the covenants
contained in Sections 1207-1209, or
(5) default is made in the performance, or a 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 expressly has been
included in this Indenture solely for the benefit of Debt Securities of a
series other than such series) occurs, and such default or breach continues for
a period of 90 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Debt Securities
of such series, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities or of such Coupons, the amount then due and
payable on such Debt Securities or matured Coupons, for the principal (and
premium, if any) and interest, if any, and, to the extent that payment of such
interest shall be legally enforceable, interest upon the overdue principal (and
premium, if any) and upon overdue installments of interest, at the Overdue
Rate; and, 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 amount forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Debt
Securities and Coupons, and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company or any
other obligor upon such Debt Securities and Coupons wherever situated.
If an Event of Default with respect to Debt Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Debt Securities
and Coupons of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
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In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceedings, or any voluntary or involuntary case under the
Federal bankruptcy laws, as now or hereafter constituted, relative to the
Company or any other obligor upon the Debt Securities and Coupons, if any, of a
particular series or the property of the Company or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of such
Debt Securities shall then be due and payable as therein expressed or by
declaration of acceleration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal (or, if the Debt Securities of such series are Discount Securities,
such portion of the principal amount as may be due and payable with respect to
such series pursuant to a declaration in accordance with Section 502) (and
premium, if any) and interest owing and unpaid in respect of the Debt
Securities and Coupons of such series and to file such other papers or
documents 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 of such Debt Securities and Coupons allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
receiver, assignee, trustee, custodian, liquidator, sequestrator or other
similar official in any such proceeding is hereby authorized by each such
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to such Holders, to pay
to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Debt Securities and any Coupons of such series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession
of Debt Securities.
All rights of action and claims under this Indenture or the
Debt Securities and the Coupons, if any, of any series may be prosecuted and
enforced by the Trustee without the possession of any of such Debt Securities
or Coupons or the production thereof In any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name,
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Debt Securities or Coupons in respect of
which such judgment has been recovered.
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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
(and premium, if any) or interest, upon presentation of the Debt Securities or
Coupons of any series in respect of which money has been collected and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid;
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities
or Coupons of such series, in respect of which or for the benefit of
which such money has been collected ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Debt Securities or Coupons for principal (and premium, if any) and
interest, respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Debt Security or Coupon of any series shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Debt Securities of
such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders or of the Holders of Outstanding Debt Securities or Coupons of any
other series, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the
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manner herein provided and for the equal and ratable benefit of all such
Holders. For the protection and enforcement of the provisions of this Section
507, each and every Holder of Debt Securities or Coupons of any series and the
Trustee for such series shall be entitled to such relief as can be given at law
or in equity.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Debt Security or of any Coupon shall have the right, which is
absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 307) interest on such Debt Security or
Coupon on the respective Stated Maturity or Maturities expressed in such Debt
Security or Coupon (or, in the case of redemption, on the Redemption Date) and
to institute suit for the enforcement of any such payment and interest thereon,
and such right shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise expressly provided elsewhere in this
Indenture, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or 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 to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
any acquiescence therein. Every right and remedy given by this Indenture or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
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The Holders of a majority in principal amount of the
Outstanding Debt Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust power conferred on the Trustee with respect
to the Debt Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) subject to the provisions of Section 601, the Trustee
shall have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or Responsible Officers of the
Trustee, determine that the proceeding so directed would be unjustly
prejudicial to the Holders of Debt Securities of such series not joining in any
such direction or would expose the Trustee to personal liability; and
(3) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any series may on behalf of the Holders of
all the Debt Securities of any such series waive 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 on any Debt Security of such series, or in the payment of any
sinking fund installment or analogous obligation with respect to the Debt
Securities of such series, or
(2) in respect of a covenant or provision hereof which
pursuant to Article Eleven cannot be modified or amended without the consent of
the Holder of each Outstanding Debt Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of the Debt Securities of such series under this Indenture, but
no such waiver shall extend to any subsequent or other default or impair any
right consequent thereto.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Debt
Security or any Coupon by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit other than the Trustee of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this
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Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder or group of Holders holding in the aggregate more
than 10% in principal amount of the Outstanding Debt Securities of any series,
or to any suit instituted by any Holder of a Debt Security or Coupon for the
enforcement of the payment of the principal of (or premium, if any) or interest
on such Debt Security or the payment of any Coupon on or after the respective
Stated Maturity or Maturities expressed in such Debt Security or Coupon (or, in
the case of redemption, on or after the Redemption Date).
SECTION 515. 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 the 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. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to the Debt Securities of any series:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case
of any such certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default with respect to Debt
Securities of any series has occurred and is continuing, the Trustee shall,
with respect to the Debt Securities of such series, exercise such of the rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
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(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it with respect to Debt
Securities of any series in good faith in accordance with the direction of the
Holders of a majority in principal amount of the Outstanding Debt Securities of
such series relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture; and
(4) the Trustee shall not be required to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to Debt Securities or Coupons, if any, of any series the Trustee
shall by the pertinent methods provided in Section 105 give notice to all
Holders of Debt Securities and Coupons of such series of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Debt Security or Coupon of
such series or in the payment of any sinking fund installment with respect to
Debt Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee
or a trust committee of directors and/or Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interest of
the Holders of Debt Securities and of Coupons of such series; and provided,
further, that in the case of any default of the character specified in Section
503(5) with respect to Debt Securities of such series no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to debt Securities of such series.
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SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(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, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture, at the request or
direction of any of the Holders of Debt Securities of any series pursuant to
this Indenture, unless such Holders shall has offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to 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, including an Exchange Rate Agent or attorneys and the Trustee shall not
be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed,
upon advice of counsel, by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
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SECTION 604. Not Responsible for Recitals or Issuance of
Debt Securities.
The recitals contained herein and in the Debt Securities,
except the Trustee's certificates of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities or Coupons, if any, of
any series. The Trustee shall not be accountable for the use or application by
the Company of any Debt Securities or the proceeds thereof.
SECTION 605. May Hold Debt Securities.
The Trustee, any Paying Agent, the Security Registrar or any
other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Debt Securities or Coupons, and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Paying Agent, Security Registrar or such other
agent.
SECTION 606. Money Held in Trust.
Money in any Currency held by the Trustee or any Paying Agent
in trust hereunder need not be segregated from other funds except to the extent
required by law. Neither the Trustee nor any Paying Agent shall be under any
liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation
in Dollars as the Company and Trustee shall from time to time agree in writing
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee in Dollars upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(3) to indemnify in Dollars each of the Trustee or any
predecessor Trustee for, and to hold it harmless against, any and all loss,
damage, claim, liability or expense including taxes (other than taxes based
upon, measured or determined by the income of the Trustee) arising out of or in
connection with the acceptance or administration of this trust or performance
of its duties hereunder including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder
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except to the extent any such loss, damage, claim, 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 lien prior to the Debt
Securities and Coupons, if any, upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the payment of amounts
due on the Debt Securities and Coupons.
The obligations of the Company under this Section 607 shall
constitute additional indebtedness under this Indenture and shall survive the
satisfaction and discharge of this Indenture.
The Trustee for the purposes of this Section 607 shall include
any predecessor Trustee provided that the negligence or bad faith of any
Trustee shall not affect the rights or any other Trustee hereunder.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section with respect to the Debt Securities of any
series, it shall, within 90 days after ascertaining that it has such
conflicting interest, and if the default (as defined in subsection (c) of this
Section) to which such conflicting interest relates has not been cured or duly
waived or otherwise eliminated before the end of such 90-day period, the
Trustee shall either eliminate such conflicting interest or resign, except as
otherwise provided below, with respect to the Debt Securities of such series in
the manner and with the effect hereinafter specified in this Article, and the
Company shall take prompt steps to have a successor appointed in the manner
provided in this Indenture.
(b) In the event that the Trustee shall fail to comply with
the provisions of subsection (a) of this Section with respect to the Debt
Securities of any series, the Trustee shall, within 10 days after the
expiration of such 90-day period, transmit by mail to all Holders of Debt
Securities of such series in the manner and to the extent provided in Section
105, notice of such failure.
(c) Subject to the provisions of Section 514 hereof, unless
the Trustee's duty to resign is stayed as provided below in this Section, any
security holder who has been a bona fide holder of Debt Securities for at least
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee,
and the appointment of a successor, if the Trustee fails, after written request
thereof by such holder, to comply with the provisions of subsection (a) of this
Section.
(d) For the purposes of this Section, the Trustee shall be
deemed to have a conflicting interest with respect to the Debt Securities of
any series, if the Debt Securities are in default (as defined in this
Indenture) and
(1) the Trustee is trustee under this Indenture with respect
to the Outstanding Debt Securities of any series other than that series or is
trustee under another indenture under
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which any other securities, or certificates of interest or participation in any
other securities, of the Company are outstanding, unless such indenture
securities are collateral trust notes under which the only collateral consists
of securities issued under another indenture or such other indenture is a
collateral trust indenture under which the only collateral consists of Debt
Securities issued under this Indenture, provided that there shall be excluded
from the operation of this paragraph the Indenture dated as of May 1, 1992 of
the Company to Chemical Bank, as trustee, the Indenture under which the
Company's Floating Rate Notes due December 28, 1994 were issued and the
Indenture under which the Company's 9.08% Senior Notes due March 28, 1995 were
issued, and provided further that there shall be excluded from the operation of
this paragraph of this Indenture with respect to the Debt Securities of any
series other than that series and any other indenture or indentures under which
other securities, or certificates of interest or participation in other
securities, of the Company are outstanding, if
(i) this Indenture and such other indenture or indentures
(and all series of securities issuable thereunder) are wholly unsecured and
rank equally and such other indenture or indentures are hereafter qualified
under the Trust Indenture Act, unless the Commission shall have found and
declared by order pursuant to Section 305(b) or Section 307(c) of the Trust
Indenture Act that differences exist between the provisions of this Indenture
with respect to the Debt Securities of such series and one or more other series
or the provisions of such other indenture or indentures which are so likely to
involve a material conflict of interest as to make it necessary in the public
interest or for the protection of investors to disqualify the Trustee from
acting as such under this Indenture with respect to the Debt Securities of such
series and such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving,
on application to the Commission and after opportunity for hearing thereon that
trusteeship under this Indenture with respect to the Debt Securities of such
series and such other series or such other indenture or indentures is not so
likely to involve a material conflict of interest as to make it necessary in
the public interest or for the protection of investors to disqualify the
Trustee from acting as such under this Indenture with respect to the Debt
Securities of such series and such other series or under such other indenture
or indentures;
(2) the Trustee or any of its directors or executive officers
is an underwriter for the Company or any other obligor upon the Debt
Securities;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect common
control with an underwriter for the Company or any other obligor upon the Debt
Securities;
(4) the Trustee or any of its directors or executive officers
is a director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) for the Company
who is currently engaged in the business of underwriting, except that (i) one
individual may be a director or an executive officer, or both, of the Trustee
and a director or an executive officer, or both, of the Company but may not be
at the same time an executive officer of both the Trustee and the Company; (ii)
if and so long as the number of directors of the Trustee in office is more than
nine, one additional individual may be a director or an executive officer, or
both, of the Trustee and a director of the Company; and (iii) the
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Trustee may be designated by the Company or by an underwriter for the Company
to act in the capacity of transfer agent, registrar, custodian, paying agent,
fiscal agent, escrow agent, or depositary, or in any other similar capacity, or
subject to the provisions of paragraph (1) of this subsection, to act as
trustee, whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or 10% or
more of the voting securities of the Trustee is beneficially owned either by an
underwriter for the Company or by any director, partner or executive officer
thereof, or is beneficially owned, collectively, by any two or more such
persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as hereafter in this
subsection defined), (i) 5% or more of the voting securities, or 10% or more of
any other class of security, of the Company not including the Debt Securities
issued under this Indenture and securities issued under any other indenture
under which the Trustee is also trustee, or (ii) 10% or more of any class of
security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, 5% or more of the
voting securities of any person who, to the knowledge of the Trustee, owns 10%
or more of the voting securities of, or controls directly or indirectly or is
under direct or indirect common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, 10% or more of any
class of security of any person who, to the knowledge of the Trustee, owns 50%
or more of the voting securities of the Company;
(9) the Trustee owns, on the date of default upon any of the
Debt Securities or any anniversary of such default while such default upon any
of the Debt Securities remains outstanding, in the capacity of executor,
administrator testamentary or inter vivos trustee, guardian, committee or
conservator, or in any other similar capacity, an aggregate of 25% or more of
the voting securities, or of any class of security, of any person, the
beneficial ownership of a specified percentage of which would have constituted
a conflicting interest under paragraph (6), (7) or (8) of this subsection. As
to any such securities of which the Trustee acquired ownership through becoming
executor, administrator, or testamentary trustee of an estate which included
them, the provisions of the preceding sentence shall not apply, for a period of
not more than two years from the date of such acquisition, to the extent that
such securities included in such estate do not exceed 25% of such voting
securities or 25% of any such class of security. Promptly after the dates of
any such default upon any of the Debt Securities and annually in each
succeeding year that any of such Debt Securities remains in default, the
Trustee shall make a check of its holdings of such securities in any of the
above-mentioned capacities as of such dates. If the Company fails to make
payment in full of the principal of (or premium, if any) or interest on any of
the Debt Securities when and as the same becomes due and payable, and such
failure continues for 30 days thereafter, the Trustee shall make a prompt check
of its holdings of such securities in any of the above-mentioned capacities as
of the date of the expiration of such 30-day period, and after such date,
notwithstanding the foregoing provisions of this paragraph,
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all such securities so held by the Trustee, with sole or joint control over
such securities vested in it, shall, but only so long as such failure shall
continue, be considered as though beneficially owned by the Trustee for the
purposes of paragraphs (6), (7) and (8) of this subsection; or
(10) except under the circumstances described in
paragraphs (1), (3), (4), (5) or (6) of this subsection, the Trustee shall be
or shall become a creditor of the Company.
For purposes of paragraph (1) of this subsection, the term
"series of securities" or "series" means a series, class or group of securities
issuable under an indenture pursuant to whose terms holders of one such series
may vote to direct the indenture trustee, or otherwise take action pursuant to
a vote of such holders, separately from holders of another such series;
provided that "series of securities" or "series" shall not include any series
of securities issuable under an indenture if all such series rank equally and
are wholly unsecured.
The specification of percentages in paragraphs (5) to (9),
inclusive of this subsection shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of paragraph (3) or (7) of this subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (ii) an obligation shall be deemed
to be "in default" when a default in payment of principal shall have continued
for 30 days or more and shall not have been cured; and (iii) the Trustee shall
not be deemed to be the owner or holder of (A) any security which it holds as
collateral security, as trustee or otherwise, for an obligation which is not in
default as defined in clause (ii) above, or (B) any security which it holds as
collateral security under this Indenture, irrespective of any default
hereunder, or (C) any security which it holds as agent for collection, or as
custodian, escrow agent or depositary, or in any similar representative
capacity.
Except in the case of a default in the payment of the
principal of or interest on any Debt Security, or in the payment of any sinking
or purchase fund installment, the Trustee shall not be required to resign as
provided by this subsection if the Trustee shall have sustained the burden of
proving, on application to the Commission and after opportunity for hearing
thereon, that
(i) the default under the Indenture may be cured
or waived during a reasonable period and under the procedures
described in such application, and
(ii) a stay of the Trustee's duty to resign will
not be inconsistent with the interests of Holders of the Debt
Securities. The filing of such an application shall automatically
stay the performance of the duty to resign until the Commission orders
otherwise.
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Any resignation of the Trustee shall become effective only
upon the appointment of a successor Trustee and such successor's acceptance of
such an appointment.
(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference to the
Company means every person who, within one year prior to the time as of which
the determination is made, was an underwriter of any security of the Company
outstanding at the time of such determination.
(2) The term "director" means any director of a corporation,
or any individual performing similar functions with respect to any
organization, whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint stock company, a trust, an estate, an
unincorporated organization, or a government or political subdivision thereof.
As used in this paragraph, the term "trust" shall include only a trust where
the interest or interests of the beneficiary or beneficiaries are evidenced by
a security.
(4) The term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or management of
the affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangements whereby a trustee or trustees or agent or agents for
the owner or holder of such security are presently entitled to vote in the
direction or management of the affairs of a person.
(5) The term "Company" means any obligor upon the Debt
Securities of any series.
(6) The term "executive officer" means the president, every
vice president, every trust officer, the cashier, the secretary, and the
treasurer of a corporation, and any individual customarily performing similar
functions with respect to any organization, whether incorporated or
unincorporated, but shall not include the chairman of the board of directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this Section (each of
whom is referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or holders
thereof to cast such specified percentage of the aggregate votes which the
holders of all the outstanding voting securities of such person are entitled to
cast in the direction or management of the affairs of such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of the class
outstanding.
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(3) The term "amount" when used with regard to securities
means the principal amount if relating to evidences of indebtedness, the number
of shares if relating to capital shares, and the number of units if relating to
any other kind of security.
(4) The term "outstanding" means issued and not held by or
for the account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating
to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating
to another class of securities of the issuer, if the obligation evidenced by
such other class of securities is not in default as to principal or interest or
otherwise;
(iii) securities pledged by the issuer thereof as security for
an obligation of the issuer not in default as to principal or interest or
otherwise; and
(iv) securities held in escrow if placed in escrow by the
issuer thereof; provided,
however, that any voting securities of an issuer shall be deemed outstanding if
any person other than the issuer is entitled to exercise the voting rights
thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in the
case of secured evidences of indebtedness, all of which are issued under a
single indenture, differences in the interest rates or maturity dates of
various series thereof shall not be deemed sufficient to constitute such series
different classes; and provided, further, that in the case of unsecured
evidences of indebtedness, differences in the interest rates or maturity dates
thereof shall not be deemed sufficient to constitute them securities of
different classes, whether or not they are issued under a single indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Section 310 of the Trust Indenture Act and
Section 608 hereof and shall be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $5,000,000, subject
to supervision or examination by Federal or State authority and having its
Corporate Trust Office in the United States of America. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. 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.
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SECTION 610. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time with respect to the
Debt Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Debt Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Debt Securities of any series and a successor Trustee may be appointed by
Act of the Holders of a majority in principal amount of the Outstanding Debt
Securities of such series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) with
respect to the Debt Securities of any series after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a Debt Security
of such series for at lest six months, or
(2) the Trustee shall cease to be eligible under Section 609
with respect to the Debt Securities of any series and shall fail to resign
after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (i) the Company by a Board
Resolution may remove the Trustee with respect to all Debt Securities, or (ii)
subject to Section 514, any Holder who has been a bona fide Holder of a Debt
Security of any series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee for the
Debt Securities of such series.
(e) If the Trustee shall resign, be removed, or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Debt Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Debt Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Debt Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Debt Securities of any particular
series) and shall comply with the applicable requirements of Section 611. If,
within one year after such resignation, removal or incapability,
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or the occurrence of such vacancy, a successor Trustee with respect to the Debt
Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Debt Securities of such series delivered
to the Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the successor
Trustee with respect to the Debt Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Debt Securities of any series shall have been so
appointed by the Company or the Holders of such series and accepted appointment
in the manner hereinafter provided, any Holder who has been a bona fide Holder
of a Debt Security of such series for at least six months may, subject to
Section 514, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Debt Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Debt Securities of any series
and each appointment of a successor Trustee with respect to the Debt Securities
of any series in the manner and to the extent provided in Section 105 to the
Holders of Debt Securities of such series. Each notice shall include the name
of the successor Trustee with respect to the Debt Securities of such series and
the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In the case of an appointment hereunder of a successor
Trustee with respect to all Debt Securities, each such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder, subject
nevertheless to its lien, if any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Debt Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee with
respect to the Debt Securities of one or more series shall execute and deliver
an indenture supplement hereto wherein each successor Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Debt Securities of that or those series of which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Debt Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the
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administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in any such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any other trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of any such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Debt Securities
of that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or,
Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any Debt
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Debt
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Debt Securities. In case any Debt Securities
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Debt Securities, in either
its own name or that of its predecessor Trustee, with the full force and effect
which this Indenture provides for the certificate of authentication of the
Trustee.
SECTION 613. Preferential Collection of Claims Against
Company.
(a) Subject to subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as defined in
subsection (c) of this Section, or subsequent to such a default, then, unless
and until such default shall be cured, the Trustee shall set apart and hold in
a special account for the benefit of the Trustee individually, the Holders of
the Debt Securities
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and of the Coupons, if any, and the holders of other indenture securities (as
defined in subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal and
interest, effected after the beginning of such three-month period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this subsection, or from the exercise of any right of set-off
which the Trustee could have exercised if a voluntary or involuntary case had
been commenced in respect of the Company under the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law upon the date of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three-month
period, or an amount equal to the proceeds of any such property, if disposed
of, subject, however, to the rights, if any, of the Company and its other
creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third Person, and (iii) distributions made in cash, securities or
other property in respect of claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or other similar law;
(B) to realize, for its own account, upon any property held
by it as security for any such claim, if such property was so held prior to the
beginning of such three-month period;
(C) to realize, for its own account, but only to the extent
of the claim hereinafter mentioned, upon any property held by it as security
for any such claim, if such claim was created after the beginning of such
three-month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain the
burden of proving that at the time such property was so received the Trustee
had no reasonable cause to believe that a default, as defined in subsection (c)
of this Section, would occur within three months; or
(D) to receive payment on any claim referred to in paragraph
(B) or (C) against the release of any property held as security for such claim
as provided in paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D),property
substituted after the beginning of such three-month period for property held as
security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status
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as the property released, and, to the extent that any claim referred to in any
of such paragraphs is created in renewal of or in substitution for or for the
purpose of repaying or refunding any pre-existing claim of the Trustee as such
creditor, such claim shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Holders and the holders of other indenture
securities in such manner that the Trustee, the Holders and the holders of
other indenture securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law, the
same percentage of their respective claims, figured before crediting to the
claim of the Trustee anything on account of the receipt by it from the Company
of the funds and property in such special account and before crediting to the
respective claims of the Trustee and the Holders and the holders of other
indenture securities dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law, but
after crediting thereon receipts on account of the indebtedness represented by
their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal bankruptcy laws, as now
or hereafter constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law, whether such distribution is made in cash,
securities, or other property, but shall not include any such distribution with
respect to the secured portion, if any, of such claim. The court in which such
bankruptcy, receivership or proceedings for reorganization is pending shall
have jurisdiction (i) to apportion among the Trustee and the Holders and the
holders of other indenture securities, in accordance with the provisions of
this paragraph, the funds and property held in such special account and
proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part,
to give to the provisions of this paragraph due consideration in determining
the fairness of the distributions to be made to the Trustee and the Holders and
the holders of other indenture securities with respect to their respective
claims, in which event it shall not be necessary to liquidate or to appraise
the value of any securities or other property held in such special account or
as security for any such claim, or to make a specific allocation of such
distributions as between the secured and unsecured portions of such claim, or
otherwise to apply the provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of such
three-month period shall be subject to the provisions of this subsection as
though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three-month period, it
shall be subject to the provisions of this subsection if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three-month period;
and
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(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection
(a) of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this Indenture
or of discharging tax liens or other prior liens or encumbrances thereon, if
notice of such advances and of the circumstances surrounding the making thereof
is given to the Holders at the time and in the manner provided in this
Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered
or premises rented, or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the Federal
Reserve Act, as amended, which is directly or indirectly a creditor of the
Company; and
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in subsection (c) of this
Section.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make payment in
full of the principal of or interest on any of the Debt Securities or upon the
other indenture securities when and as such principal or interest becomes due
and payable.
(2) The term "other indenture securities" means securities
upon which the Company is an obligor outstanding under any other indenture (i)
under which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and (iii) under which
a default exists at the time of the apportionment of the funds and property
held in such special account.
(3) The term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other orders
drawn upon banks and payable upon demand.
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(4) The term "self-liquidating paper" means any draft, bill
of exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
(5) The term "Company" means any obligor upon the Debt
Securities.
SECTION 614. Appointment of Authenticating Agent.
As long as any Debt Securities of a series remain Outstanding,
there may be an authenticating agent (the "Authenticating Agent") selected and
appointed, for such period as the Trustee shall elect, by the Trustee for such
series of Debt Securities to act as its agent on its behalf and subject to its
direction in connection with the authentication and delivery of such series of
Debt Securities for which it is serving as Trustee. Debt Securities of each
such series authenticated by such Authenticating Agent shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
as if authenticated by such Trustee. Wherever reference is made in this
Indenture to the authentication and delivery of Debt Securities of any series
by the Trustee for such series or to the Trustee's Certificate of
Authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee for such series by an Authenticating Agent
for such series and a Certificate of Authentication executed on behalf of such
Trustee by such Authenticating Agent except that only the Trustee may
authenticate Debt Securities upon original issuance and pursuant to Section 306
hereof. Such Authenticating Agent shall at all times be a corporation
organized and doing business under the laws of the United States of America or
of any State, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $5,000,000 and subject to
supervision or examination by federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for purposes of this Section the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section. Any corporation
into which any Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which any Authenticating Agent, shall be a party, or any
corporation succeeding to the corporate agency business of any Authenticating
Agent, shall continue to be the Authenticating Agent with respect to all series
of Debt Securities for which it served as Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
for such series or such Authenticating Agent. Any Authenticating Agent may at
any time and if it shall cease to be eligible shall resign, by giving written
notice of resignation to the applicable Trustee and to the Company.
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Upon receiving such a notice of resignation or upon such a
termination or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 614 with respect to
one or more of all series of Debt Securities, the Trustee for such series shall
upon Company Request appoint a successor Authenticating Agent, and the Company
shall provide notice of such appointment to all Holders of Debt Securities of
such series in the manner and to the extent provided in Section 105. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as
Authenticating Agent herein. The Company agrees to pay to the Authenticating
Agent for such series from time to time reasonable compensation for its
services. The Authenticating Agent for the Debt Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee for such series.
If an appointment with respect to one or more series is made
pursuant to this Section, the Debt Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication set forth
in Section 202, an alternative certificate of authentication in the following
form:
This is one of the Debt Securities of the series designated
therein referred to in the within mentioned Indenture.
-------------------------------------------
As Trustee
By
-----------------------------------------
As Authenticating Agent
By
-----------------------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders.
The Company will furnish or cause to be furnished to the
Trustee with respect to Registered Securities of each series for which it acts
as Trustee:
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(a) semi-annually on a date not more than 15 days after
each Regular Record Date with respect to an Interest Payment Date, if any, for
the Registered Securities of such series (or on semi-annual dates in each year
to be determined pursuant to Section 301 if the Registered Securities of such
series do not bear interest), a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Registered Holders as of
the date 15 days next preceding each such Regular Record Date (or such
semi-annual dates, as the case may be); and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to
the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar for such series, no such list need be furnished.
The Company shall also be required to furnish to the Trustee
at all such times set forth above all information in the possession or control
of the Company or any of its Paying Agents other than the Trustee as to the
names and addresses of the Holders of Bearer Securities of all series;
provided, however, that the Company shall have no obligation to investigate any
matter relating to any Holders of Bearer Securities of any series.
SECTION 702. Preservation of Information; Communication to
Holders.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, all information as to the names and addresses of
Holders contained in the most recent list furnished to the Trustee as provided
in Section 701 received by it in the capacity of Paying Agent (if so acting)
hereunder.
(b) If three or more Holders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Debt Security for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Debt Securities of a particular series (in which case the applicants must
hold Debt Securities of such series) or with all Holders of Debt Securities
with respect to their rights under this Indenture or under the Debt Securities
and is accompanied by a copy of the form of proxy or other communication which
such applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number
of Holders of Debt Securities of such series or of all Debt Securities as the
case may be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 702(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, specified in such application.
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If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon written request of such
applicants, mail to the Holders of Debt Securities of such series or all
Holders, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
702(a), a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of
the material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders of Debt Securities of such series or all Holders as
the case may be, or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Debt Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Holders in
accordance with Section 702(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing of any material pursuant to a request made under Section
702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing
with the year _______, the Trustee shall transmit to all Holders of Debt
Securities of any series with respect to which it acts as Trustee, in the
manner hereinafter provided in this Section 703, a brief report dated as of
such May 15 with respect to:
(1) any change to its eligibility under Section 609 and
its qualifications under Section 608, or in lieu thereof, if to the best of its
knowledge it has continued to be eligible and qualified under said Sections, a
written statement to such effect;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of Section 608(c) hereof;
(3) any change to the character and amount of any
advances made by the Trustee (as such) which remain unpaid on the date of such
report, and for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Debt Securities of such series, on any property or
funds held or collected by it as Trustee, if such advances so remaining unpaid
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aggregate not more than 1/2 of 1% of the principal amount of the Outstanding
Debt Securities of such series on the date of such report;
(4) any change to the amount, interest rate and maturity
date of all other indebtedness owing by the Company (or any other obligor on
the Debt Securities of such series) to the Trustee in its individual capacity,
on the date of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 613(b) (2), (3), (4) or
(6);
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of property
subject to the lien of the Indenture (and the consideration therefor, if any)
which it has not previously reported;
(7) any additional issue of Debt Securities which the
Trustee has not previously reported; and
(8) any action taken by the Trustee in the performance of
its duties hereunder which it has not previously reported and which in its
opinion materially affects the Debt Securities of such series, except action in
respect of a default, notice of which has been or is to be withheld by the
Trustee in accordance with Section 602.
(b) The Trustee shall transmit by mail to all Holders of
Debt Securities of any series (whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
702(a)) for which it acts as the Trustee, as hereinafter provided, a brief
report with respect to the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) since the date of the last report transmitted
pursuant to subsection (a) of this Section (or if no such report has yet been
so transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that
of the Debt Securities of such series, on property or funds held or collected
by it as Trustee, and which it has not previously reported pursuant to this
subsection, if such advances remaining unpaid at any time aggregate more than
10% of the principal amount of the Debt Securities of such series Outstanding
at such time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section 703 shall be
transmitted by mail:
(1) to all Registered Holders, as the names and addresses
of the Registered Holders appear in the Security Register;
(2) to such Holders of Debt Securities of any series as
have, within two years preceding such transmission, filed their names and
addresses with the Trustee for such series for that purpose; and
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(3) except in the cases of reports pursuant to subsection
(b) of this Section 703, to all Holders of Debt Securities of any series whose
name and address appear in the information preserved at the time by the
Trustee, in accordance with Section 702(a).
(d) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Debt Securities of such series are listed, with the Commission and
also with the Company. The Company will promptly notify the Trustee when any
series of Debt Securities are listed on any stock exchange.
SECTION 704. 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 Securities
Exchange Act of 1934, as amended; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then it
will file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be required from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this Indenture
as may be required from time to time by such rules and regulations; and
(3) transmit to all Holders of Debt Securities, in the
manner and to the extent provided in Section 703, within 30 days after the
filing thereof with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section as may be required to be transmitted to Holders by rules
and regulations prescribed from time to time by the Commission.
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ARTICLE EIGHT
CONCERNING THE HOLDERS
SECTION 801. Acts of Holders.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent or
proxy duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee, and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Whenever in this
Indenture it is provided that the Holders of a specified percentage in
aggregate principal amount of the Outstanding Debt Securities of any series may
take any Act, the fact that the Holders of such specified percentage have
joined therein may be evidenced (a) by the instrument or instruments executed
by Holders in person or by agent or proxy appointed in writing, or (b) by the
record of Holders voting in favor thereof at any meeting of such Holders duly
called and held in accordance with the provisions of Article Nine, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of Holders.
SECTION 802. Proof of Ownership; Proof of Execution of
Instruments by Holders.
The ownership of Registered Securities of any series shall be
proved by the Security Register for such series or by a certificate of the
Security Registrar for such series.
The ownership of Bearer Securities shall be proved by
production of such Bearer Securities or by a certificate executed by any bank
or trust company, which certificate shall be dated and shall state on the date
thereof a Bearer Security bearing a specified identifying number or other mark
was deposited with or exhibited to the person executing such certificate by the
person named in such certificate, or by any other proof of possession
reasonably satisfactory to the Trustee. The holding by the person named in any
such certificate of any Bearer Security specified therein shall be presumed to
continue for a period of one year unless at the time of determination of such
holding (1) another certificate bearing a later date issued in respect of the
same Bearer Security shall be produced, (2) such Bearer Security shall be
produced by some other person, (3) such Bearer Security shall have been
registered on the Security Register, if, pursuant to Section 301, such Bearer
Security can be so registered, or (4) such Bearer Security shall have been
cancelled or paid.
Subject to the provisions of Section 601, 603 and 905, proof
of the execution of a writing appointing an agent or proxy and of the execution
of any instrument by a Holder or his agency proxy shall be sufficient and
conclusive in favor of the Trustee and the Company if made in the following
manner:
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The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public or other
officer authorized to take acknowledgement of deeds, that the person executing
such instrument acknowledged to him the execution thereof, or by an affidavit
of a witness to such execution sworn to before any such notary or other such
officer. Where such execution is by an officer of a corporation or association
or a member of a partnership on behalf of such corporation, association or
partnership, as the case may be, or by any other person acting in a
representative capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The record of any Holders' meeting shall be proved in the
manner provided in Section 906.
The Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section so long as the
request is a reasonable one.
SECTION 803. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving payment of the principal of (and premium, if any) and (subject to
Section 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. The Company, the Trustee, and any
agent of the Company or the Trustee may treat the Holder of any Bearer Security
or of any Coupon as the absolute owner of such Bearer Security or Coupon for
the purposes of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Bearer Security or Coupon be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary. All payments made to
any Holder or upon his order, shall be valid, and, to the extent of the sum or
sums paid, effectual to satisfy and discharge the liability for moneys payable
upon such Debt Security or Coupon.
SECTION 804. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 801, of the taking of any Act by the Holders of
the percentage in aggregate principal amount of the Outstanding Debt Securities
specified in this Indenture in connection with such Act, any Holder of a Debt
Security the number, letter or other distinguishing symbol of which is shown by
the evidence to be included in the Debt Securities the Holders of which have
consented to such Act may, by filing written notice with the Trustee at the
Corporate Trust Office and upon proof of ownership as provided in Section 802,
revoke such Act so far as it concerns such Debt Security. Except as aforesaid,
any such Act taken by the Holder of any Debt Security shall be conclusive and
binding upon such Holder and upon all future Holders of such Debt Security and
all past, present and future Holders of Coupons, if any, appertaining thereto
and of any Debt Securities and Coupons issued on transfer or in lieu thereof or
in exchange or substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon such Debt Security or Coupons or such
other Debt Securities or Coupons.
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ARTICLE NINE
HOLDER'S MEETINGS
SECTION 901. Purposes of Meetings.
A meeting of Holders of any or all series may be called at any
time and from time to time pursuant to the provisions of this Article Nine for
any of the following purposes:
(1) to give any notice to the Company or to the Trustee
for such series, or to give any directions to the Trustee for such series, or
to consent to the waiving of any default hereunder and its consequences, or to
take any other action authorized to be taken by Holders pursuant to any of the
provisions of Article Five;
(2) to remove the Trustee for such series and appoint a
successor Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section 1102; or
(4) to take any other action authorized to be taken by or
on behalf of the Holders of any specified aggregate principal amount of the
Outstanding Debt Securities of any one or more or all series, as the case may
be, under any other provision of this Indenture or under applicable law.
SECTION 902. Call of Meetings by Trustee.
The Trustee for any series may at any time call a meeting of
Holders of such series to take any action specified in Section 901, to be held
at such time or times and at such place or places as the Trustee for such
series shall determine. Notice of every meeting of the Holders of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given to Holders of such
series in the manner and to the extent provided in Section 105. Such notice
shall be given not less than 20 days nor more than 90 days prior to the date
fixed for the meeting.
SECTION 903. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 25% in aggregate principal amount of the
Outstanding Debt Securities of a series or of all series, as the case may be,
shall have requested the Trustee for such series to call a meeting of Holders
of any or all such series by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
given the notice of such meeting within 20 days after the receipt of such
request, then the Company or such Holders may determine the time or times and
the place or places for such meetings and may call such meetings to take any
action authorized in Section 901, by giving notice thereof as provided in
Section 902.
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SECTION 904. Qualifications for Voting.
To be entitled to vote at any meeting of Holders a Person
shall be (a) a Holder of a Debt Security of the series with respect to which
such meeting is being held or (b) a Person appointed by an instrument in
writing as agent or proxy by such Holder. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders shall be the
Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee for the series with respect to which such
meeting is being held and its counsel and any representatives of the Company
and its counsel.
SECTION 905. Regulations.
Notwithstanding any other provisions of this Indenture, the
Trustee for any series may make such reasonable regulations as it may deem
advisable for any meeting of Holders of such series, in regard to proof of the
holding of Debt Securities of such series and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of such series as provided in Section 903, in which
case the Company or the Holders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by a majority vote of the
meeting.
Subject to the provisos in the definition of "Outstanding," at
any meeting each Holder of a Debt Security of the series with respect to which
such meeting is being held or proxy therefor shall be entitled to one vote for
each $1,000 principal amount (or such other amount as shall be specified as
contemplated by Section 301) of Debt Securities of such series held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Debt Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Outstanding Debt
Securities of such series held by him or instruments in writing duly
designating him as the person to vote on behalf of Holders of Debt Securities
of such series. Any meeting of Holders with respect to which a meeting was duly
called pursuant to the provisions of Section 902 or 903 may be adjourned from
time to time by a majority of such Holders present and the meeting may be held
as so adjourned without further notice.
SECTION 906. Voting.
The vote upon any resolution submitted to any meeting of
Holders with respect to which such meeting is being held shall be by written
ballots on which shall be subscribed the signatures of such Holders or of their
representatives by proxy and the serial number or numbers of the Debt
Securities held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written
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reports in duplicate of all votes cast at the meeting. A record in duplicate of
the proceedings of each meeting of Holders shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
transmitted as provided in Section 902. The record shall show the serial
numbers of the Debt Securities voting in favor of or against any resolution.
The record shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one of the duplicates shall be
delivered to the Company and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 907. No Delay of Rights by Meeting.
Nothing contained in this Article Nine shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of Holders
or any rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to any Holder under any of the provisions of this
Indenture of the Debt Securities of any series.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 1001. Company May Consolidate, etc., Only on
Certain Terms.
The Company shall not consolidate with or merge into any other
corporation 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 corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by such
consolidated or into which the Company is merged or the Person which acquires
the conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a corporation organized and
existing under the laws of the United States or any State 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
on all the Debt Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
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(2) immediately after giving effect to such transaction,
no Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be continuing;
(3) the corporation formed by such consolidation or into
which the Company shall have been merged or the Person to which such sale,
lease or other disposition shall have been made shall be a banking institution
or a bank holding company subject to Federal or State authority; and
(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 supplement indenture is required
in connection with such transaction, such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 1002. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other corporation, or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 1001, the successor corporation 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 corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Debt Securities.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to
the Company and the assumption by such successor of the covenants of the
Company herein and in the Debt Securities contained; or
(2) to add to the covenants of the Company, for the
benefit of the Holders of all or any series of Debt Securities and the Coupons,
if any, appertaining thereto (and if such covenants are to be for the benefit
of less than all series, stating that such covenants are
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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 (and if such
Events of Default are to be applicable to less than all series, stating that
such Events of Default are expressly being included solely to be applicable to
such series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Debt Securities of any series in bearer form, registrable or not
registrable, and with or without Coupons, to permit Bearer Securities to be
issued in exchange for Registered Securities to the extent permitted by
applicable law, to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit the issuance of Debt
Securities of any series in uncertificated form, provided that any such action
shall not adversely affect the interests of the Holders of Debt Securities of
any series or any related Coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become effective
only when there is no Outstanding Debt Security or Coupon of any series created
prior to the execution of such supplemental indenture which is entitled to the
benefit of such provision and as to which such supplemental indenture would
apply; or
(6) to secure the Debt Securities; or
(7) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Debt Securities pursuant to Articles Four or
Fifteen, provided that any such action shall not adversely affect the interests
of the Holders of Debt Securities of such series or any other series of Debt
Securities or any related Coupons in any material respect; or
(8) to establish the form or terms of Debt Securities and
Coupons, if any, of any series as permitted by Sections 201 and 301; or
(9) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to one or more series
of Debt Securities and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611; or
(10) to make any modifications, amendments or supplements
to any provision herein which modifications, amendments or supplements are
required pursuant to any amendment of the Trust Indenture Act of 1939 enacted,
or any Rules promulgated thereunder, after the date hereof; or
(11) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be
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inconsistent with any provision of this Indenture, provided such other
provisions shall not adversely affect the interests of the Holders of
Outstanding Debt Securities or Coupons, if any, of any series created prior to
the execution of such supplemental indenture in any material respect.
SECTION 1102. Supplemental Indentures With Consent of
Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture voting separately, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture of such
Debt Securities; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Debt Security of each
such series affected thereby,
(1) change the Stated Maturity of the principal of, or
installment of interest, if any, on, any Debt Security, or reduce the principal
amount thereof or the interest thereon or any premium payable upon redemption
thereof, or change the Stated Maturity of or reduce the amount of any payment
to be made with respect to any Coupon or change the Currency or Currencies in
which the principal of (and premium, if any) or interest on such Debt Security
is denominated or payable, or reduce the amount of the principal of a Discount
Security that would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 502, or adversely affect the right of
repayment or repurchase, if any, at the option of the Holder, or reduce the
amount of, or postpone the date fixed for, any payment under any sinking fund
or analogous provisions for any Debt Security, or impair the right to institute
suit for the enforcement of any payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or limit the
obligation of the Company to maintain a paying agency outside the United States
for payment on Bearer Securities as provided in Section 1203, or limit the
obligation of the Company to redeem an Affected Security as provided in Section
1302(b); or
(2) reduce the percentage in principal amount of the
Outstanding Debt Securities of any series, the consent of whose Holders is
required for any supplemental indenture, or the consent of whose Holders is
required for any waiver of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences provided for in this
Indenture; or
(3) modify any of the provisions of this Section, Section
513 or Section 1211, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Debt Security affected thereby;
provided, however, that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1211, or the deletion of this
proviso, in accordance with the requirements of Sections 611 and 1101(7).
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It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture with respect to one or more
particular series of Debt Securities and Coupons, if any, or which modifies the
rights of the Holders of Debt Securities and Coupons of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Debt Securities and Coupons, if
any, of any other series.
SECTION 1103. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) 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
adversely affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise in a material way.
SECTION 1104. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Debt Securities and Coupons theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 1105. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trustee Indenture Act as then in
effect.
SECTION 1106. Reference in Debt Securities to Supplemental
Indentures.
Debt Securities and Coupons, if any, of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Debt Securities
and Coupons of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Debt Securities and Coupons of such series.
SECTION 1107. Notice of Supplemental Indenture.
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Promptly after the execution by the Company and the
appropriate Trustee of any supplemental indenture pursuant to Section 1102, the
Company shall transmit, in the manner and to the extent provided in Section
105, to all Holders of any series of the Debt Securities affected thereby, a
notice setting forth in general terms the substance of such supplemental
indenture.
ARTICLE TWELVE
COVENANTS
SECTION 1201. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Debt Securities and Coupons, if any, that it will duly and punctually
pay the principal of (and premium, if any) and interest on the Debt Securities
in accordance with the terms of the Debt Securities, the Coupons and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Debt 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. The interest, if any, due in respect of any temporary
Global Note or permanent Global Note, together with any additional amounts
payable in respect thereof, as provided in the terms and conditions of such
Debt Security, shall be payable, subject to the conditions set forth in Section
1202, only upon presentation of such Debt Security to the Trustee for notation
thereon of the payment of such interest.
SECTION 1202. Payment of Additional Amounts.
If specified pursuant to Section 301, the provisions of this
Section 1202 shall be applicable to Securities of any series.
The Company will, subject to the exceptions and limitations
set forth below, pay to the Holder of a Bearer Security or Coupon who is a
United States Alien such additional amounts as may be necessary so that every
net payment on such Bearer Security or Coupon, after withholding by the Company
or the designated paying agents for or on account of any present or future tax,
assessment of other governmental charge imposed upon or as a result of such
payment by the United States (or any political subdivision or taxing authority
thereof or therein), will not be less than the amount provided in such Bearer
Security or Coupon to be then due and payable. However, the Company will not be
required to make any payment of additional amounts for or on account of:
(a) any tax, assessment or other governmental charge
that would not have been so imposed but for (i) the existence of any present or
former connection between such Holder (or such fiduciary, settlor, or
beneficiary of, or a person holding a power over, such Holder, if such holder
is an estate or a trust, or a member or shareholder of such Holder, if such
Holder is a partnership or corporation) and the United States, including,
without limitation, such Holder (or such fiduciary, settlor, beneficiary,
person holding power, member or shareholder) being or having been a citizen
or resident thereof or being or having been engaged in trade or
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business or present therein, or having or having had a permanent establishment
therein, or (ii) such Holder's past or present status as a personal holding
company, foreign personal holding company or private foundation or other
tax-exempt organization with respect to the United States or a corporation
that accumulates earnings to avoid United States Federal income tax;
(b) any estate, inheritance, gift, sales, transfer or
personal property tax or any similar tax, assessment or other governmental
charge;
(c) any tax, assessment or other governmental charge that
would not have been imposed but for the presentation by the Holder of a Debt
Security or Coupon for payment more than 15 days after the date on which such
payment became due and payable or the date on which payment thereof was duly
provided for, whichever occurs later;
(d) any tax, assessment or other governmental charge that
is payable otherwise than by withholding from a payment on a Debt Security or
Coupon;
(e) any tax, assessment or other governmental charge
required to be withheld by any Paying Agent from a payment on a Debt Security
or Coupon, if such payment can be made without such withholding by at least one
other Paying Agent;
(f) any tax, assessment or other governmental charge that
would not have been imposed but for a failure to comply with applicable
certification, information, documentation or other reporting requirements
concerning the nationality, residence, identity or connection with the United
States of the Holder or beneficial owner of a Debt Security or Coupon if such
compliance is required by statute or regulation of the United States as a
precondition to relief or exemption from such tax, assessment or other
governmental charge (including backup withholding);
(g) any tax, assessment or other governmental charge
imposed on a Holder that actually or constructively owns 10 percent or more of
the combined voting power of all classes of stock of the Company entitled to
vote or that is a controlled foreign corporation related to the Company through
stock ownership;
(h) any tax, assessment or other governmental charge
imposed with respect to any Registered Security by reason of failure of the
Holder to fulfill the statement requirement of Section 871(h) or Section 881(c)
of the Code or regulations thereunder or any successor provision; or
(i) any combination of items (a), (b), (c), (d), (e),
(f), (g) or (h) hereof;
nor shall additional amounts be paid with respect to a payment on a Debt
Security or Coupon to a Holder that is a fiduciary or partnership or other than
the sole beneficial owner of such payment to the extent such payment would be
required by the laws of the United States (or any political subdivision
thereof) to be included in the income for tax purposes of a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner that would not have been entitled to the additional amounts
had such beneficiary, settlor, member or beneficial owner been the Holder of
such Debt Security or Coupon.
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Whenever in this Indenture there is mentioned, in any context,
the payment of the principal of (or premium, if any) or interest on any Debt
Security or payment with respect to any Coupon of any series, such mention
shall be deemed to include mention of the payment of additional amounts
provided for in the terms of such Debt Securities and this Section to the
extent that, in such context, additional amounts are, were or would be payable
in respect thereof pursuant to the provisions of this Section 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.
SECTION 1203. Maintenance of Office or Agency.
If Debt Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for such series
an office or agency where Debt Securities of that series may be presented or
surrendered for payment, where Debt Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Debt Securities of that series
and this Indenture may be served. If Debt Securities of a series are issuable
as Bearer Securities, the Company will maintain (A) in The City of London, 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, where Debt Securities
of that series may be surrendered for exchange, where notices and demands to or
upon the Company in respect of the Debt Securities of that series and this
Indenture may be served and where Bearer Securities of that series and related
coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Debt
Securities of that series and related coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on Securities
of that series pursuant to Section 1202); provided, however, that if the Debt
Securities of that series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Payment Agent for the Debt Securities
of that series in London, Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Debt Securities of that
series are listed on such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside the
United States an office or agency where any Registered Securities of that
series may be surrendered for registration of transfer, where Debt Securities
of that series may be surrendered for registration of transfer, where Debt
Securities of that series may be surrendered for exchange and where notices and
demands to or upon the Company in respect of the Debt Securities of that series
and this Indenture may be served. The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to maintain any such required
office or agency 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 (in the case of Registered
Securities) and at the principal London office of the Trustee (in the case of
Bearer Securities), and the Company hereby appoints the Trustee as its agent to
receive all presentations, surrenders, notices and demands.
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No payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; provided,
however, that, if the Debt Securities of a series are denominated and payable
in Dollars, payment of principal of and any premium and interest on any Bearer
Security (including any additional amounts payable on Securities of such series
pursuant to Section 1202) shall be made at the office of the Company's Paying
Agent in The City of London if (but only if) payment in Dollars of the full
amount of such principal, premium, interest or additional amounts, as the case
may be, at all offices or agencies outside the United States maintained for the
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions. The
Company may also from time to time designate different or additional offices or
agencies to be maintained for such purposes (in or outside of such Place of
Payment), and may from time to time rescind any such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligations described in the preceding paragraph. The Company
will give prompt written notice to the Trustee of any such additional
designation or rescission of designation and any change in the location of any
such different or additional office or agency.
SECTION 1204. Money for Debt Securities; Payments To Be
Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Debt Securities and Coupons, if any, it will, on
or before each such due date of the principal of (and premium, if any) or
interest on any of the Debt Securities of such series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with
respect to any series of Debt Securities and Coupons, it will, by or on each
due date of the principal (and premium, if any) or interest on any Debt
Securities of such series, deposit with any such Paying Agent a sum sufficient
to pay the principal (and premium, if any) or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled thereto, and
(unless any such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each Paying Agent with respect to any
series of Debt Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Debt Securities of such series in trust
for the benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
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(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Debt Securities of such series) in the making of any
payment of principal (and premium, if any) or interest on the Debt securities
of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Debt Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company upon Company Request,
or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Debt Security or Coupon shall thereafter, as an unsecured
general creditor look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment may at the expense of the Company cause to be
transmitted in the manner and to the extent provided by Section 105, notice
that such money remains unclaimed and that after a date specified therein,
which shall not be less than 30 days from the date of such notification any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1205. Corporate Existence.
Subject to Article Ten, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such existence,
right or franchise if the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company.
SECTION 1206. Purchase of Debt Securities by Company.
If the Debt Securities of a series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, the Company will not purchase any Debt Securities of
that series by private treaty at a price (exclusive of expenses and accrued
interest) which exceeds 120% of the mean of the nominal quotations of the Debt
Securities of that series as shown in The Stock Exchange Daily Official List
for the last trading day preceding the date of purchase.
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SECTION 1207. Limitation on Disposition of Voting Stock of,
and Merger and Sale of Assets by, Major
Constituent Banks.
Except as provided in Article Ten, so long as any of the Debt
Securities shall be outstanding, the Company will not
(a) sell, assign, transfer or otherwise dispose of any
shares of, or securities convertible into or options, warrants or rights to
subscribe for or purchase shares of, Voting Stock of a Major Constituent Bank,
and will not permit a Major Constituent Bank to issue any shares of, or
securities convertible into or options, warrants or rights to subscribe for or
purchase shares of, such Voting Stock if, after giving effect to any such
transaction and to the issuance of the maximum number of shares of Voting Stock
of such Major Constituent Bank issuable upon the exercise of all such
convertible securities, options, warrants or rights, the Major Constituent Bank
would cease to be a Controlled Subsidiary, except as otherwise provided below
in this Section 1207 or in Section 1209; or
(b) permit a Major Constituent Bank to
(i) merge or consolidate with or into any other
corporation, unless the surviving corporation is, or upon consummation of the
merger or consolidation will become a Controlled Subsidiary, or
(ii) lease, sell or transfer all or substantially all of
its properties and assets to any corporation or other Person, except to a
Controlled Subsidiary or a Person that, upon such lease, sale or transfer, will
become a Controlled Subsidiary.
SECTION 1208. Exempted Transactions.
Notwithstanding Section 1207(a), the Company may sell, assign,
transfer or otherwise dispose of any shares of, or securities convertible into,
or options, warrants or rights to subscribe for or purchase shares of, Voting
Stock of a Major Constituent Bank
(i) in compliance with an order of a court or regulatory
authority of competent jurisdiction or as a condition imposed by such court or
authority to the acquisition by the Company, directly or indirectly, of any
other corporation or entity; or
(ii) where the proceeds, if any, from any such sale,
assignment or disposition are within a reasonable period of time invested in
any Controlled Subsidiary (including any person which upon such investment
becomes a Controlled Subsidiary) engaged in a banking business or any other
business then legally permissible for bank holding companies pursuant to an
understanding or agreement in principle reached at the time of such sale,
assignment or disposition.
SECTION 1209. Officers' Certificate as to Default; Notice
of Default.
(a) The Company will deliver to the Trustee, on or before a
date not more than four months after the end of each fiscal year of the Company
(which on the date hereof is the
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calendar year) ending after the date hereof, an Officers' Certificate stating
whether or not to the best knowledge of the signers thereof (one of whom must
be the principal executive officer, principal operating officer or principal
financial officer of the Company) the Company is in default in the performance
and observation of any of the terms, provisions and conditions of this
Indenture, and, if the Company shall be in default, specifying all such
defaults and the nature thereof of which they may have knowledge.
(b) The Company shall file with the Trustee written notice of
the occurrence of any default (as defined in Section 602) or Event of Default
within ten Business Days of the Company becoming aware of any such default or
Event of Default.
SECTION 1210. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
the covenants set forth in Sections 1207 to 1209; inclusive, or, if so
specified pursuant to Section 301, any other covenant specified pursuant to
Section 301 with respect to the Debt Securities of any series if, before the
time for such compliance, the Holders of at least a majority in principal
amount of the Outstanding Debt Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant, but no such waiver shall extend to or affect
such covenant 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 in respect of any such covenant shall remain in full force and effect.
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES
SECTION 1301. Applicability of Article.
Debt Securities of any series which are redeemable before
their Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified pursuant to Section 301 for Debt Securities of any
series) in accordance with this Article.
SECTION 1302. Tax Redemption; Special Tax Redemption.
(a) Unless otherwise specified pursuant to Section 301, Debt
Securities of any series may be redeemed at the option of the Company in whole,
but not in part, on not more than 60 days' and not less than 30 days' notice,
on any Redemption Date at the Redemption Price specified pursuant to Section
301 (or at par if none specified), if the Company determines that (1) it has or
will become obligated to pay additional amounts on such Debt Securities
pursuant to Section 1202 as a result of any change in, or amendment to, the
laws (or any regulations or rulings promulgated thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, or
any change in official position regarding the application or interpretation of
such laws, regulations or rulings, which change or amendment becomes effective
on or after the date on which any Person (including any Person acting as
underwriter, broker or dealer) agrees to purchase any of such Debt Securities
pursuant to their original
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issuance or (2) on or after such date, any action has been taken by any taxing
authority of, or any decision has been rendered in a court of competent
jurisdiction in, the United States or any political subdivision or taxing
authority thereof or therein, including any of those actions specified in (1)
above, whether or not such action was taken or decision was rendered with
respect to the Company, or any change, amendment, application or interpretation
shall be officially proposed which in any such case, in the written opinion to
the Company of independent legal counsel of recognized standing, will result in
a material probability that the Company will become obligated to pay additional
amounts with respect to Debt Securities pursuant to Section 1202. Prior to the
publication of any notice of redemption pursuant to this Section 1302(a), the
Company shall deliver to the Trustee (i) an Officers' Certificate stating that
the Company is entitled to effect such redemption and setting forth a statement
of facts showing that the conditions precedent to the right of the Company so
to redeem have occurred, and (ii) an Opinion of Counsel to such effect based on
such statement of facts.
(b) Unless otherwise specified pursuant to Section 301, if
the Company shall determine that any payment made outside the United States by
the Company or any of its Paying Agents in respect of any Bearer Security which
is not a Floating Rate Security (an "Affected Security") would, under any
present or future laws or regulations of the Untied States, be subject to any
certification, documentation, information or other reporting requirement of any
kind, the effect of which requirement is the disclosure to the Company, any
Paying Agent or any governmental authority of the nationality, residence or
identity of a beneficial owner of such Affected Security that is a United
States Alien (other than such a requirement (i) that would not be applicable to
a payment made by the Company or any one of its Paying Agents (A) directly to
the beneficial owner or (B) to a custodian, nominee or other agent of the
beneficial owner, or, (ii) that can be satisfied by such custodian, nominee or
other agent certifying to the effect that the beneficial owner is a United
States Alien; provided, that, in any case referred to in clause (i) (B) or
(ii), payment by the custodian, nominee or agent to the beneficial owner is not
otherwise subject to any such requirement), the Company shall elect either (x)
(1) in the case of Affected Securities that are Discount Securities, to permit
the Holders of such Affected Securities to elect, but only if done within 90
days after publication of the Determination Notice as hereunder provided, to
surrender the same for redemption in whole but not in part at the Redemption
Price, and (2) in the case of any other Affected Securities, to redeem such
Affected Securities, at the Redemption Price, or (y) if the conditions of the
next succeeding paragraph are satisfied, to pay the additional amounts
specified in such paragraph. The Company shall make such determination as soon
as practicable and publish prompt notice thereof (the "Determination Notice"),
stating the effective date of such certification, documentation, information or
reporting requirement, whether the Company elects to redeem (or, in the case of
Discount Securities, permit the Holders to elect to surrender for redemption)
the Affected Securities or to pay the additional amounts specified in the next
succeeding paragraph, and (if applicable) the last date by which the redemption
of the Affected Securities must take place, as provided in the next succeeding
sentence. If any Affected Securities are to be redeemed pursuant to this
paragraph, the redemption shall take place on such date, not later than one
year after the publication of the Determination Notice, as the Company shall
specify by notice to the Trustee at least 60 days before the Redemption Date.
Notice of such redemption of the Affected Securities shall be given to the
Holders of Affected Securities not more than 60 days nor less than 30 days
prior to the Redemption Date. Notwithstanding the foregoing, the Company shall
not so redeem (or, in the case of Discount Securities, permit the Holders to
elect to surrender for redemption) the Affected
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Securities if the Company shall subsequently determine, not less than 30 days
prior to the Redemption Date, that subsequent payments on the Affected
Securities would not be subject to any such certification, documentation,
information or other reporting requirement, in which case the Company shall
publish prompt notice of such subsequent determination and any earlier
redemption notice shall be revoked and of no further effect. If and so long as
the certification, documentation, information or other reporting requirement
referred to in the preceding paragraph would be fully satisfied by payment of a
backup withholding tax or similar charge, the Company may elect to pay such
additional amounts as may be necessary so that every net payment made outside
the United States following the effective date of such requirement by the
Company or any of its Paying Agents in respect of any Affected Security of
which the beneficial owner is a United States Alien (but without any
requirement that the nationality, residence or identity of such beneficial
owner be disclosed to the Company, any Paying Agent or any government
authority), after deduction or withholding for or on account of such backup
withholding tax or similar charge (other than a backup withholding tax or
similar charge which (i) would not be applicable in the circumstances referred
to in the parenthetical clause of the first sentence of the preceding
paragraph, or (ii) is imposed as a result of presentation of any such Affected
Security for payment more than 15 days after the date on which such payment
became due and payable or on which payment thereof was duly provided for,
whichever occurs later), will not be less than the amount provided in any such
Affected Security to be then due and payable. If the Company elects to pay
additional amounts pursuant to this paragraph, the Company shall have the right
to redeem (or, in the case of Discount Securities, permit the Holders to elect,
but only for the period of 30 days after the publication of notice of the
redemption as hereinafter provided, to surrender for redemption) the Affected
Securities as a whole, but not in part, at any time at the Redemption Price,
subject to the provisions of the last two sentences of the immediately
preceding paragraph. If the Company has made the determination described in the
preceding paragraph with respect to certification, documentation, information
or other reporting requirements applicable only to interest and subsequently
makes a determination in the manner and of the nature referred to in such
preceding paragraph with respect to such requirements applicable to principal,
the Company will redeem the Affected Securities in the manner and on the terms
described in the preceding paragraph unless the Company elects to have the
provisions of this paragraph apply rather than the provisions of the
immediately preceding paragraph. If in such circumstances the Affected
Securities are to be redeemed, the Company shall have no obligation to pay
additional amounts pursuant to this paragraph with respect to principal, but
will be obligated to pay such additional amounts with respect to interest
accrued and unpaid to the date of such redemption. If the Company elects to pay
additional amounts pursuant to this paragraph and the condition specified in
the first sentence of this paragraph should no longer be satisfied, then the
Company shall redeem (or, in the case of Discount Securities, permit the
Holders to elect, but only for the period of 30 days after publication of the
notice of redemption as hereinafter provided, to surrender for redemption) the
Affected Securities in whole, but not in part, at the Redemption Price subject
to the provisions of the last two sentences of the immediately preceding
paragraph. If the Company elects to, or is required to, redeem (or, in the case
of Discount Securities, required to permit Holders to elect to surrender for
redemption) the Affected Securities pursuant to the two immediately preceding
sentences, it shall publish prompt notice thereof. If the Affected Securities
are to be redeemed pursuant to this paragraph, the redemption shall take place
on such date, not later than one year after publication of the notice of
redemption, as the Company shall specify by notice to the Trustee at least 60
days prior to the Redemption Date. Any redemption payments made by the Company
pursuant to this
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paragraph shall be subject to the continuing obligation of the Company to pay
additional amounts pursuant to this paragraph.
SECTION 1303. Election to Redeem; Notice to Trustee.
The election of the Company to redeem (or in the case of
Discount Securities, to permit the Holders to elect to surrender for
redemption) any Debt Securities shall be evidenced by a Board Resolution. In
case of any redemption at the election of the Company of less than all of the
Debt Securities of any series pursuant to Section 1304, 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 in its sole discretion),
notify the Trustee of such Redemption Date and of the principal amount of Debt
Securities of such series to be redeemed. In case of any redemption at the
election of the Company of all of the Debt Securities of any series, the
Company shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee in its
sole discretion), notify the Trustee of such Redemption Date. In the case of
any redemption of Debt Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Debt Securities or elsewhere in
this Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restrictions.
SECTION 1304. Selection by Trustee of Debt Securities to be
Redeemed.
Except in the case of a redemption in whole of the Bearer
Securities or the Registered Securities of such series, if less than all the
Debt Securities of any series are to be redeemed at the election of the Company
(other than as provided in Section 1302), the particular Debt Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Debt Securities of such series not
previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Debt Securities of
such series or any integral multiple thereof) of the principal amount of Debt
Securities of such series in a denomination larger than the minimum authorized
denomination for Debt Securities of such series pursuant to Section 302 in the
Currency in which the Debt Securities of such series are denominated. The
portions of the principal amount of Debt Securities so selected for partial
redemption shall be equal to the minimum authorized denominations for Debt
Securities of such series pursuant to Section 302 in the Currency in which the
Debt Securities of such series are denominated or any integral multiple
thereof, except as otherwise set forth in the applicable form of Debt
Securities. In any case where more than one Registered Security of such series
is registered in the same name, the Trustee in its discretion may treat the
aggregate principal amount so registered as if it were represented by one
Registered Security of such series.
The Trustee shall promptly notify the Company in writing of
the Debt Securities selected for redemption and, in the case of any Debt
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Debt
Securities shall relate, in the case of any Debt
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Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Debt Security which has been or is to be redeemed.
SECTION 1305. Notice of Redemption.
Notice of redemption shall be given by the Company, or at the
Company's request, by the Trustee in the name and at the expense of the
Company, not less than 30 days and not more than 60 days prior to the
Redemption Date to the Holders of Debt Securities of any series to be redeemed
in whole or in part pursuant to this Article Thirteen, in the manner provided
in Section 105. Any notice so given shall be conclusively presumed to have been
duly given, whether or not the Holder receives such notice. Failure to give
such notice, or any defect in such notice to the Holder of any Debt Security of
a series designated for redemption, in whole or in part, shall not affect the
sufficiency of any notice of redemption with respect to the Holder of any other
Debt Security of such series.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being redeemed by
the Company pursuant to provisions contained in this Indenture or the terms of
the Debt Securities of such series or a supplemental indenture establishing
such series, if such be the case, together with a brief statement of the facts
permitting such redemption,
(4) if less than all Outstanding Debt Securities of any
series are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Debt Securities to be
redeemed,
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security to be redeemed, and that
interest thereon, if any, shall cease to accrue on and after said date,
(6) that, unless otherwise specified in such notice, Coupon
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption, failing which the amount of any such missing Coupon or Coupons will
be deducted from the Redemption Price,
(7) the Place or Places of Payment where such Debt Securities
are to be surrendered for payment of the Redemption Price,
(8) 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(b) or otherwise, the
last date on which such exchanges may be made,
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(9) that the redemption is for a sinking fund, if such is the
case, and
(10) the CUSIP number or numbers of the Debt Security to be
redeemed.
SECTION 1306. Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on the Redemption Date
for any Debt Securities, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1204) an amount of money in the
Currency or Currencies in which such Debt Securities are denominated (except as
provided pursuant to Section 301) sufficient to pay the Redemption Price of
such Debt Securities or any portions thereof which are to be redeemed on that
date.
SECTION 1307. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, any Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price in the Currency in which the Debt Securities of
such series are payable (except as otherwise specified pursuant to Sections 301
or 310), and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Debt Securities shall cease to bear
interest. Upon surrender of any such Debt Security for redemption in accordance
with said notice, such Debt Security shall be paid by the Company at the
Redemption Price; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 1203) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of Coupons
for such interest, and provided, further, that, unless otherwise specified as
contemplated by Section 301, installments of interest on Registered Securities
which have a Stated Maturity on or prior to the Redemption Date for such Debt
Securities shall be payable according to the terms of such Debt Securities and
the provisions of Section 307.
If any Debt Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Debt Security.
If any Coupon Security surrendered for redemption shall not be
accompanied by all Coupons appertaining thereto maturing on or after the
Redemption Date, the Redemption Price for such Coupon Security may be reduced
by an amount equal to the face amount of all such missing Coupons. If
thereafter the Holder of such Coupon shall surrender to any Paying Agent
outside the United States any such missing Coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted. The surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee, if there be
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless.
SECTION 1308. Debt Securities Redeemed in Part.
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Any Debt Security which is to be redeemed only in part shall
be surrendered at the Corporate Trust Office or such other office or agency of
the Company as is specified pursuant to Section 301 (in the case of Registered
Securities) and at an office of the Trustee or such other office or agency of
the Company outside the United States as is specified pursuant to Section 301
(in the case of Bearer Securities) with, if the Company, the Security Registrar
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Security Registrar and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing, and the Company shall execute, and the Trustee shall authenticate and
make available for delivery to the Holder of such Debt Security without service
charge, a new Debt Security or Debt Securities of the same series of like tenor
and form, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Debt Security so surrendered, and, in the case of a
Coupon Security, with appropriate Coupons attached. In the case of a Debt
Security providing appropriate space for such notation, at the option of the
Holder thereof, the Trustee in lieu of delivering a New Debt Security or Debt
Securities as aforesaid, may make a notation on such Debt Security of the
payment of the redeemed portion thereof.
ARTICLE FOURTEEN
SINKING FUNDS
SECTION 1401. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Debt Securities of a series except as
otherwise specified pursuant to Section 301 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Debt Securities of any series is herein referred to as a
"mandatory sinking fund payment," and any payment in excess of such minimum
amount provided for by the terms of Debt Securities of any series is herein
referred to as an "optional sinking fund payment." If provided for by the
terms of Debt Securities of any series, the amount of any cash sinking fund
payment may be subject to reduction as provided in Section 1402. Each sinking
fund payment shall be applied to the redemption of Debt Securities of any
series as provided for by the terms of Debt Securities of such series.
SECTION 1402. Satisfaction of Mandatory Sinking Fund
Payments with Debt Securities.
In lieu of making all or any part of a mandatory sinking fund
payment with respect to any Debt Securities of a series in cash, the Company
may at its option, at any time no more than sixteen months and no less than 45
days prior to the date on which such sinking fund payment is due, deliver to
the Trustee Debt Securities of such series (together with the unmatured
Coupons, if any, appertaining thereto) theretofore purchased or otherwise
acquired by the Company, except Debt Securities of such series which have been
redeemed through the
89
<PAGE> 96
application of mandatory sinking fund payments pursuant to the terms of the
Debt Securities of such series, accompanied by a Company Order instructing the
Trustee to credit such obligations and stating that the Debt Securities of such
series were originally issued by the Company by way of bona fide sale or other
negotiation for value; provided that such Debt Securities shall not have been
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Debt
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 1403. Redemption of Debt Securities for Sinking
Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Debt Securities (unless a shorter period shall be
satisfactory to the Trustee), the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash in the Currency or
Currencies in which the Debt Securities of such series are denominated (except
as provided pursuant to Section 301) and the portion thereof, if any, which is
to be satisfied by delivering and crediting Debt Securities of such series
pursuant to Section 1402 and whether the Company intends to exercise its rights
to make a permitted optional sinking fund payment with respect to such series.
Such certificate shall be irrevocable and upon its delivery the Company shall
be obligated to make the cash payment or payments therein referred to, if any,
on or before the next succeeding sinking fund payment date. In the case of the
failure of the Company to deliver such certificate, the sinking fund payment
due on the next succeeding sinking fund payment date for such series shall be
paid entirely in cash and shall be sufficient to redeem the principal amount of
the Debt Securities of such series subject to a mandatory sinking fund payment
without the right to deliver or credit Debt Securities as provided in Section
1402 and without the right to make any optional sinking fund payment with
respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional)
made in cash plus any unused balance of any preceding sinking fund payments
made with respect to the Debt Securities of any particular series shall be
applied by the Trustee (or by the Company if the Company is acting as its own
Paying Agent) on the sinking fund payment date on which such payment is made
(or if such payment is made before a sinking fund payment date, on the sinking
fund payment date immediately following the date of such payment) to the
redemption of Debt Securities of such series at the Redemption Price specified
in such Debt Securities with respect to the sinking fund. Any sinking fund
moneys not so applied or allocated by the Trustee (or by the Company if the
Company is acting as its own Paying Agent) to the redemption of Debt Securities
shall be added to the next sinking fund payment received by the Trustee (or if
the Company is acting as its own Paying Agent segregated and held in trust as
provided in Section 1204) for such series and, together with such payment (or
such amount so segregated) shall be applied in accordance with the provisions
of this Section. Any and all sinking fund moneys with respect to the Debt
Securities of any particular series held by the Trustee (or if the Company is
acting as its own Paying Agent, segregated and held in trust as provided in
Section 1204) on the last sinking fund payment date with respect to Debt
Securities of such series and not held for the payment or redemption of
particular Debt Securities of such series shall be applied by the Trustee (or
by the Company if the Company is acting as its own Paying Agent), together with
90
<PAGE> 97
other moneys if necessary, to be deposited (or segregated) sufficient for the
purpose to the payment of the principal of the Debt Securities of such series
at Maturity.
The Trustee shall select or cause to be selected the Debt
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1304 and the Company shall cause notice of the redemption
thereof to be given in the manner provided in Section 1305. Such notice having
been duly given, the redemption of such Debt Securities shall be made upon the
terms and in the manner stated in Section 1307.
On or before each sinking fund payment date, the Company shall
pay to the Trustee (or, if the Company is acting as its own Paying Agent, the
Company shall segregate and hold in trust as provided in Section 1204) in cash
a sum, in the Currency or Currencies in which Debt Securities of such series
are denominated (except as provided pursuant to Sections 301 or 310), equal to
the principal and any interest accrued to the Redemption Date for Debt
Securities or portions thereof to be redeemed on such sinking fund payment date
pursuant to this Section.
Neither the Trustee nor the Company shall redeem any Debt
Securities of a series with sinking fund moneys or mail any notice of
redemption of Debt Securities of such series by operation of the sinking fund
for such series during the continuance of a default in payment of interest, if
any, on any Debt Securities of such series or of any Event of Default (other
than an Event of Default occurring as a consequence of this paragraph) with
respect to the Debt Securities of such series except that if the notice of
redemption shall have been provided in accordance with the provisions hereof,
the Trustee (or the Company, if the Company is then acting as its own Paying
Agent) shall redeem such Debt Securities if cash sufficient for that purpose
shall be deposited with the Trustee (or segregated by the Company) for that
purpose in accordance with the terms of this Article. Except as aforesaid any
moneys in the sinking fund for such series at the time when any such default or
Event of Default shall occur and any moneys thereafter paid into such sinking
fund shall, during the continuance of such default or Event of Default, be held
as security for the payment of the Debt Securities and Coupons, if any, of such
series; provided, however, that in case such default or Event of Default shall
have been cured or waived as provided herein such moneys shall thereafter be
applied on the next sinking fund payment date for the Debt Securities of such
series on which such moneys may be applied pursuant to the provisions of this
Section.
ARTICLE FIFTEEN
DEFEASANCE
SECTION 1501. Applicability of Article.
If, pursuant to Section 301, provision is made for the
defeasance of Debt Securities of a series pursuant to this Article 15, and if
the Debt Securities of such series are Registered Securities and denominated
and payable only in Dollars (except as provided pursuant to Section 301) then
the provisions of this Article shall be applicable except as otherwise
specified pursuant to Section 301 for Debt Securities of such series.
Defeasance provisions, if
91
<PAGE> 98
any, for Debt Securities denominated in a Foreign Currency or Currencies or for
Bearer Securities may be specified pursuant to Section 301.
SECTION 1502. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations.
At the Company's option, either (a) the Company shall be
deemed to have been Discharged (as defined below) from its obligations with
respect to Debt Securities of any series on the 91st day after the applicable
conditions set forth below have been satisfied or (b) the Company shall cease
to be under any obligation to comply with any term, provision or condition set
forth in Sections 1001, 1207 and 1208 with respect to Debt Securities of any
series (and if so specified pursuant to Section 301, any other restrictive
covenant added for the benefit of such series pursuant to Section 301) at any
time after the applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of the Debt
Securities of such series (i) money in an amount, or (ii) U.S. Government
Obligations (as defined below) which through the payment of interest and
principal in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount, or
(iii) a combination of (i) and (ii), sufficient, in the opinion (with respect
to (i) and (ii)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee (upon which the Trustee may conclusively rely), to pay and discharge
each installment of principal (including any mandatory sinking fund payments)
of and premium, if any, and interest on, the Outstanding Debt Securities of
such series on the dates such installments of interest or principal and premium
are due;
(2) such deposit shall not cause the Trustee with respect to
the Debt Securities of that series to have a conflicting interest as defined in
Section 608 and for purposes of the Trust Indenture Act with respect to the
Debt Securities of any series;
(3) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that such deposit will not result in a breach
or violation of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which it is
bound;
(4) if the Debt Securities of such series are then listed on
any national securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Company's exercise of its
option under this Section would not cause such Debt Securities to be delisted;
(5) the Company shall have delivered to the Trustee an
Officer's Certificate to the effect that no Event of Default or event
(including such deposit) which, with notice or lapse of time or both, would
become an Event of Default with respect to the Debt Securities of such series
shall have occurred and be continuing on the date of such deposit and no Event
of Default under Section 501(1) or (2) or event which with the giving of notice
or lapse of time, or both,
92
<PAGE> 99
would become an Event of Default under Section 501(1) or (2) shall have
occurred and be continuing on the 91st day after such date; and
(6) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Company has received from, or there
has been published by, the Internal Revenue Service a ruling to the effect that
the Holders of the Debt Securities of such series will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit,
defeasance or Discharge.
"Discharged" means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by, and obligations
under, the Debt Securities of such series and to have satisfied all the
obligations under this Indenture relating to the Debt Securities of such series
(and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except (A) the rights of Holders of Debt
Securities of such series to receive, from the trust fund described in clause
(1) above, payment of the principal of (and premium, if any) and interest on
such Debt Securities when such payments are due, (B) the Company's obligations
with respect to the Debt Securities of such series under Sections 304, 305,
306, 1203 and 1503 and (C) the rights, powers, trusts, duties and immunities of
the Trustee hereunder, including, but not limited to, Section 607 hereof.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States 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 the payment
of which is unconditionally guaranteed as a full faith and credit obligation by
the United States, which, in either case under clauses (i) or (ii), are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian
with respect to any such U.S. Government Obligation or a specific payment of
interest on or principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
SECTION 1503. Deposited Moneys and U.S. Government
Obligations to Be Held in Trust.
All moneys and U.S. Government Obligations deposited with the
Trustee pursuant to Section 1502 in respect of Debt Securities of a series
shall be held #in trust and applied by it, in accordance with the provisions of
such Debt Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Debt Securities, of all
sums due and to become due thereon for principal (and premium, if any) and
interest, if any, but such money need not be segregated from other funds except
to the extent required by law.
SECTION 1504. Repayment to Company.
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<PAGE> 100
The Trustee and any Paying Agent shall promptly pay or return
to the Company upon Company Request any moneys or U.S. Government Obligations
held by them at any time that are not required for the payment of the principal
of (and premium, if any) and interest on the Debt Securities of any series for
which money or U.S. Government Obligations have been deposited pursuant to
Section 1502.
The provisions of this last paragraph of Section 1204 shall
apply to any money held by the Trustee or any Paying Agent under this Article
that remains unclaimed for two years after the Maturity of any series of Debt
Securities for which money or U.S. Government Obligations have been deposited
pursuant to Section 1502.
94
<PAGE> 101
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.
SOUTHTRUST CORPORATION
By
--------------------------------------------
Its
-------------------------------------------
ATTEST:
- --------------------------------
Seal
----------------------------------------------
----------------------------------------------,
as Trustee
By
--------------------------------------------
Its
-------------------------------------------
ATTEST:
- --------------------------------
Seal
95
<PAGE> 102
ACKNOWLEDGEMENTS
STATE OF _____________ )
)ss.:
COUNTY OF ____________ )
On the _____ day of _______________________, 19__, before me
personally came ___________________________, to me known, who, being by me duly
sworn, did depose and say that he resides at ______________________________
______________________________________, Birmingham, Alabama; that he is ______
_______________________ of SouthTrust Corporation, 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.
-------------------------------------------
Notary Public
SEAL
STATE OF _____________ )
) ss.:
COUNTY OF ____________ )
On the _____ day of ________________________, 19__, before me
personally came ____________________________, to me known, who, being by me
duly sworn, did depose and say that he resides at __________________________
_____________________________________________; that he is a _______________
_____________________ of _______________________________________, one of the
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.
-------------------------------------------
Notary Public
SEAL
96
<PAGE> 103
EXHIBIT A
[FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR
OR CEDEL, S.A. BY OR ON BEHALF OF A PERSON ENTITLED
TO RECEIVE A DEFINITIVE BEARER SECURITY, TO EXCHANGE AN
INTEREST IN A TEMPORARY GLOBAL NOTE FOR AN INTEREST IN A
PERMANENT GLOBAL NOTE OR TO OBTAIN A PAYMENT OF INTEREST
PRIOR TO THE RECEIPT OF A DEFINITIVE BEARER SECURITY
OR AN INTEREST IN A PERMANENT GLOBAL NOTE]
CERTIFICATE
----------------------------
SouthTrust Corporation
[Insert title of sufficient description
of Debt Securities to be delivered]
This is to certify that as of the date hereof and except as
set forth below, the above-captioned Debt Securities held by you for our
account (i) are owned by persons that are not United States persons, (as
defined below) (ii) are owned by United States persons that (A) are foreign
branches of United States financial institutions (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing
for their own account or for resale, or (B) acquired the Debt Securities
through foreign branches of United States financial institutions and who hold
the Debt Securities through such 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 the issuer or the issuer's
agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by a United States or foreign financial
institutions for purposes of resale during the restricted period (as defined in
U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7). In addition, United
States or foreign financial institutions described in clause (iii) of the
preceding sentence (whether or not also described in clause (i) or (ii))
certify that they have not acquired the Debt 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 Person" means any citizen or
resident of the United States, any corporation or partnership created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "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 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 Debt 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, you may assume that this
certification applies as of such date.
<PAGE> 104
This certification excepts and does not relate to $________
principal amount of such interest in the above Debt Securities in respect of
which we are not able to certify and as to which we understand exchange and
delivery of definitive Debt Securities cannot be made until we so certify.
We understood that this certification is required in
connection with certain tax laws of the United States. In connection therewith,
if administrative or legal proceedings are commenced or threatened in
connection with which this certification is or would be relevant, we
irrevocably authorize you to produce this certification or a copy thereof to
any interested party in such proceedings.
Dated: ___________________, 19__.
[To be dated no earlier than the
15th day before (i) the Exchange
Date or (ii) the first Interest
Payment Date, if prior to the
Exchange Date].
By
-----------------------------------
As, or as agent for, the
beneficial owner(s) of the
Debt Securities to which this
certificate relates
2
<PAGE> 105
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
OR CEDEL, S.A. IN CONNECTION WITH THE EXCHANGE OF A
TEMPORARY GLOBAL NOTE FOR DEFINITIVE BEARER SECURITIES OR
FOR AN INTEREST IN A PERMANENT GLOBAL NOTE OR TO OBTAIN A
PAYMENT OF INTEREST PRIOR TO THE RECEIPT OF DEFINITIVE
BEARER SECURITIES OR AN INTEREST IN A PERMANENT GLOBAL NOTE]
CERTIFICATE
--------------------------------
SouthTrust Corporation
[Insert title or sufficient description
of Debt Securities to be delivered]
This is to certify that, based solely on certifications we
have received in writing, by tested telex or by electronic transmission from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Indenture, as of the date hereof,
$____________________ principal amount of the above-captioned Debt Securities
(i) is owned by persons that are not United States persons (as defined below),
(ii) is owned by United States persons that (a) are foreign branches of United
States financial institutions (as defined in U.S. Treasury Regulations Section
165-12(c)(l)(v)) ("financial institutions") purchasing for their own account or
for resale, or (b) acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt Securities through
such United States financial institutions on the date hereof (and in either
case (a) or (b), each such United States financial institution hereby agrees to
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 institutions for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations
Section l.163- 5(c)(2)(i)(D)(7)). In addition, United States or foreign
financial institutions described in clause (iii) of the preceding sentence
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Debt Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possession.
As used herein, "United States Person" means any citizen or
resident of the United States, any corporation or partnership created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States federal income taxation regardless
of its source, and "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 (i) we are not making available for
exchange or collection of any interest any portion of the Temporary Global Note
excepted in such certifications and (ii) that as of the date hereof we have not
received any notification from any of our Member Organizations to the effect
that the statements made by such Member
<PAGE> 106
Organizations with respect to any portion of the part submitted herewith
for exchange or collection of any interest are no longer true and cannot
be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax laws of the United States. In connection therewith,
if administrative or legal proceedings are commenced or threatened in
connection with which this certification is or would be relevant, we
irrevocably authorize you to produce this certification to any interested party
in such proceedings.
Dated: _________________, 19__.
[To be dated no earlier than
(i) the Exchange Date or (ii)
the first Interest Payment Date,
if prior to the Exchange Date]
[
--------------------------------------
as Operator of the Euro-clear
System] [CEDEL, S.A.]
By
-------------------------------------
2
<PAGE> 107
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of __________, 19____
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
<S> <C> <C>
Section 310 (a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 608, 610
(c) Not Applicable
Section 311 (a) 613(a)
(b) 613(b)
(b)(2) 703(a)(2), 703(b), 703(b)
Section 312 (a) 701, 702(a)
(b) 702(b)
(c) 702(c)
Section 313 (a) 703(a)
(b) 703(b)
(c) 703(c)
(d) 703(d)
Section 314 (a) 704
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
Section 315 (a) 601(a), 601(c)
(b) 602
(c) 601(b)
(d) 601(c)
(d)(1) 601(a)
(d)(2) 601(c)(2)
(d)(3) 601(c) (3)
(e) 514
Section 316 (a) 101
(a)(1)(A) 502, 507, 512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
Section 317 (a)(1) 503
(a)(2) 504
(b) 1204
Section 318 (a) 106
</TABLE>
- ----------------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
3
<PAGE> 1
Subordinated Indenture
________________________________________________________________________________
SOUTHTRUST CORPORATION
TO
CHEMICAL BANK,
TRUSTEE
______________________________
INDENTURE
Dated as of May 1, 1992
______________________________
________________________________________________________________________________
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 104. Notices, etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 105. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 106. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 107. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 108. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 109. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 111. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 112. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 113. No Security Interest Created . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 114. Liability Solely Corporate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE TWO
DEBT SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE THREE
THE DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 304. Temporary Debt Securities; Exchange of Temporary Global Notes for Definitive Bearer Securities . 22
SECTION 305. Registration, Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt Securities . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 307. Payment of Interest; Interest Rights Preserved. . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 308. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 309. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 310. Currency Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 311. Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 312. Exchange Upon Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
</TABLE>
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ARTICLE FOUR
SATISFACTION AND DISCHARGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE FIVE
REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . 41
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 505. Trustee May Enforce Claims Without Possession of Debt Securities . . . . . . . . . . . . . . . . 43
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest . . . . . . . . . . . . 44
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 602. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 604. Not Responsible for Recitals or Issuance of Debt Securities . . . . . . . . . . . . . . . . . . . 49
SECTION 605. May Hold Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
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SECTION 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . 58
SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . 64
SECTION 702. Preservation of Information; Communication To Holders . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE EIGHT
CONCERNING THE HOLDERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 801. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 802. Proof of Ownership; Proof of Execution of Instruments by Holders . . . . . . . . . . . . . . . . 68
SECTION 803. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 804. Revocation of Consents; Future Holders Bound . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE NINE
HOLDER'S MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 901. Purposes of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 902. Call of Meetings by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 903. Call of Meetings by Company or Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 904. Qualifications for Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 905. Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 906. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 907. No Delay of Rights by Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1001. Company May Consolidate, etc., Only on Certain Terms . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1002. Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
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SECTION 1101. Supplemental Indentures Without Consent of Holders. . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1102. Supplemental Indentures With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1103. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 1104. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 1105. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 1106. Reference in Debt Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1107. Notice of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
ARTICLE TWELVE
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1201. Payment of Principal, Premium and Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1202. Payment of Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1203. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 1204. Money for Debt Securities; Payments To Be Held in Trust . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1205. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1206. Purchase of Debt Securities by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1207. Limitation on Disposition of Voting Stock of, and Merger and Sale of Assets by, Major Constituent
Banks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1208. Exempted Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1209. Officers' Certificate as to Default; Notice of Default . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1210. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1301. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 1302. Tax Redemption; Special Tax Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 1303. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 1304. Selection by Trustee of Debt Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . 86
SECTION 1305. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 1306. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 1307. Debt Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 1308. Debt Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
ARTICLE FOURTEEN
SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 1401. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 1402. Satisfaction of Mandatory Sinking Fund Payments with Debt Securities . . . . . . . . . . . . . . 90
SECTION 1403. Redemption of Debt Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . 90
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ARTICLE FIFTEEN
DEFEASANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
SECTION 1501. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
SECTION 1502. Defeasance Upon Deposit of Moneys or U. S. Government Obligations . . . . . . . . . . . . . . . . 92
SECTION 1503 Deposited Moneys and U.S. Government
Obligations to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
SECTION 1504. Repayment to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
ARTICLE SIXTEEN
SUBORDINATION OF DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
SECTION 1601. Debt Securities Subordinate to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 94
SECTION 1602. Reliance on Certificate of Liquidating Agent; Further Evidence as to Ownership of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 1603. Payment Permitted If No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
SECTION 1604. Trustee Not Charged with Knowledge of Prohibition . . . . . . . . . . . . . . . . . . . . . . . . 97
SECTION 1605. Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
SECTION 1606. Rights of Trustee as Holder of Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 98
SECTION 1607. Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
SECTION 1608. Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
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INDENTURE dated as of May 1, 1992, between SOUTHTRUST
CORPORATION, a Delaware corporation (hereinafter called the "Company"), having
its principal executive office at 420 North 20th Street, Birmingham, Alabama
35203 and CHEMICAL BANK, a New York corporation (hereinafter called the
"Trustee"), having its Corporate Trust Office at 450 West 33rd Street, 15th
Floor, New York, New York 10001.
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 debentures,
notes, bonds or other evidences of indebtedness subordinated as to priority of
payment (herein generally called the "Debt Securities"), to be issued in one or
more series, as in this Indenture provided.
All things necessary have been done to make this Indenture a
valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
Debt Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of Debt Securities or of
Debt Securities of any series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 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
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principles as are generally accepted in the United States of America at
the date of such computation; and
(4) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Three or Article
Six, are defined in those respective Articles.
"Act" when used with respect to any Holder has the meaning
specified in Section 801.
"Affected Security" has the meaning specified in Section
1302(b).
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" has the meaning specified in Section
614.
"Authorized Newspaper" means a newspaper in an official
language of the country of publication customarily published at least once a
day, and customarily published for at least five days in each calendar week,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any Business Day in
such city.
"Banking Subsidiary" means any Subsidiary organized under the
laws of the United States or of any state, commonwealth, territory or
possession thereof and which conducts a commercial, merchant or other banking
business, or a trust business.
"Bearer Security" means any Debt Security (with or without
Coupons), in the form established pursuant to Section 201, which is payable to
bearer (including any Global Note) and title to which passes by delivery only,
but does not include any Coupons.
"Board of Directors" means either the board of directors of
the Company, or any committee of that board duly authorized to act in respect
hereof.
"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.
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<PAGE> 9
"Business Day" when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the Debt
Securities means any day which is not a Saturday, a Sunday or a legal holiday
or a day on which banking institutions or trust companies in that Place of
Payment or other location are authorized or obligated by law or regulation to
remain closed, except as otherwise specified pursuant to Section 301.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres S.A.
"Code" means the Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder, as in effect on the date hereof.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the Chairman, the
President or a Vice President and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Component Currency" has the meaning specified in Section
310(i).
"Consolidated Banking Assets" means all assets owned directly
or indirectly by a Banking Subsidiary and reflected on the Company's
consolidated balance sheet prepared in accordance with generally accepted
accounting principles applicable to banks and bank holding companies.
"Controlled Subsidiary" means any Subsidiary more than 80% of
the outstanding shares of the Voting Stock of which is at the time owned
directly or indirectly by the Company or by one or more Controlled Subsidiaries
or by the Company and one or more Controlled Subsidiaries.
"Conversion Date" has the meaning specified in Section 310(e).
"Conversion Event" means the cessation of (i) a Foreign
Currency to be used both by the government of the country which issued such
Currency and for the settlement of transactions by public institutions of or
within the international banking community, (ii) the ECU to be used both within
the European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any Currency unit
other than the ECU to be used for the purposes for which it was established.
3
<PAGE> 10
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of this
instrument is located as specified in the first paragraph hereof.
The term "corporation" includes corporations, associations,
companies and business trusts.
"Coupon" means any interest coupon appertaining to any Bearer
Security.
"Coupon Security" means any Bearer Security authenticated and
delivered with one or more Coupons appertaining thereto.
"Currency" means Dollars or Foreign Currency.
"Debt Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any Debt Securities (including
any Global Notes) authenticated and delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Discharged" has the meaning specified in Section 1502.
"Discount Security" means any Debt Security which is issued
with "original issue discount" within the meaning of Section 1273(a) of the
Code and the regulations thereunder.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time of payment is legal
tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning
specified in Section 310(h)
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 310(g).
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 310(i).
"Euro-clear Operator" means the operator of the Euro-clear
System or its successor.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy Community.
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<PAGE> 11
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate Agent" means the New York Clearing House bank,
if any, from time to time selected by the Company for purposes of Section 310.
"Fixed Rate Security" means a Debt Security which provides for
the payment of interest at a fixed rate (excluding amounts payable pursuant to
Section 1202 or 1302).
"Floating Rate Security" means a Debt Security which provides
for the payment of interest at a variable rate determined periodically by
reference to an interest rate index or any other index specified pursuant to
Section 301.
"Foreign Currency" means a currency issued by the government
of any country other than the United States or a composite currency or currency
unit the value of which is determined by reference to the values of the
currencies of any group of countries.
"Global Note" means a Registered or Bearer Security evidencing
all or part of a series of Debt Securities, including, without limitation, any
temporary or permanent Global Note.
"Holder" means, with respect to a Registered Security, the
Registered Holder, and with respect to a Bearer Security or a Coupon, the
bearer thereof.
"Indenture" means this instrument as originally executed, or
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and, unless the context otherwise requires, shall include the
terms of a particular series of Debt Securities as established pursuant to
Section 301.
The term "interest," when used with respect to a Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity and, when used with respect to a Bearer Security,
includes any additional amounts payable on such Bearer Security pursuant to
Section 1202 or 1302.
"Interest Payment Date" with respect to any Debt Security
means the Stated Maturity of an installment of interest on such Debt Security.
"Major Constituent Bank" means any Banking Subsidiary, the
Consolidated Banking Assets of which constitute 10% or more of the Company's
Consolidated Banking Assets.
"Market Exchange Rate" means (i) for any conversion involving
a Currency unit on the one hand and Dollars or any Foreign Currency on the
other, the exchange rate between the relevant Currency unit and Dollars or such
Foreign Currency calculated by the method specified pursuant to Section 301 for
the securities of the relevant series, (ii) for any conversion
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of Dollars into any Foreign Currency, the noon (New York City time) buying rate
for such Foreign Currency for cable transfers quoted in New York City as
certified for customs purposes by the Federal Reserve Bank of New York and
(iii) for any conversion of one Foreign Currency into Dollars or another
Foreign Currency, the spot rate at noon local time in the relevant market at
which, in accordance with normal banking procedures, the Dollars or Foreign
Currency into which conversion is being made could be purchased with the
Foreign Currency from which conversion is being made from major banks located
in either New York City, London or any other principal market for Dollars or
such purchased Foreign Currency. In the event of the unavailability of any of
the exchange rates provided for in the foregoing clauses (i), (ii) and (iii)
the Exchange Rate Agent, if any, or if there shall not be an Exchange Rate
Agent, then the Trustee shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New York as of the
most recent available date, or quotations from one or more major banks in New
York City, London or other principal market for such Currency or Currency unit
in question, or such other quotations as the Exchange Rate Agent or the
Trustee, as the case may be, shall deem appropriate. Unless otherwise
specified by the Exchange Rate Agent, or the Trustee, as the case may be, shall
deem appropriate. Unless otherwise specified by the Exchange Rate Agent, if
any, or if there shall not be an Exchange Rate Agent, then by the Trustee, 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 insurer of securities designated in such Currency or Currency unit
would purchase such Currency or Currency unit in order to make payments in
respect of such securities.
"Maturity" when used with respect to any Debt Security means
the date on which the principal of such Debt Security or an installment of
principal becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption,
repayment at the option of the Holder thereof or otherwise.
"Mortgage" means any mortgage, lien, pledge or other
encumbrance.
"Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel to the Company (including an employee of the Company) or an
Affiliate of the Company and who shall be satisfactory to the Trustee, which is
delivered to the Trustee.
"Outstanding", when used with respect to Debt Securities,
means, as of the date of determination, all Debt Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
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(ii) Debt Securities for whose payment or
redemption money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Debt Securities and any coupons thereto
appertaining: provided, however, that if such Debt Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made; and
(iii) Debt Securities which have been paid pursuant
to Section 306 or in exchange for or in lieu of which other Debt Securities
have been authenticated and delivered pursuant to this Indenture, other than
any such Debt Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Debt Securities are held by a
bona fide purchase in whose hands such Debt Securities are valid obligations of
the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debt Securities Outstanding have performed any Act
hereunder, Debt Securities owned by the Company or any other obligor upon the
Debt Securities or any Affiliate of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such Act, only Debt
Securities which the Trustee knows to be so owned shall be so disregarded, Debt
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right to act with respect to such Debt Securities and that the
pledgee is not the Company or any other obligor upon the Debt Securities or any
Affiliate of the Company or of such other obligor. In determining whether the
Holders of the requisite principal amount of Outstanding Debt Securities have
performed any Act hereunder, the principal amount of a Discount Security that
shall be deemed to be Outstanding for such purpose shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 and the principal amount of a Debt Security denominated
in a Foreign Currency that shall be deemed to be Outstanding for such purpose
shall be the amount calculated pursuant to Section 310(k).
"Overdue Rate," when used with respect to any series of the
Debt Securities, means the rate designated as such in or pursuant to the Board
Resolution or the supplemental indenture, as the case may be, relating to such
series as contemplated by Section 301.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Debt Securities
on behalf of the Company.
"Permanent Global Note" shall have the meaning given such term
in Section 304.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, estate, unincorporated
organization or government or any agency or political subdivision thereof.
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"Place of Payment" when used with respect to the Debt
Securities of any series means the place or places where the principal of (and
premium, if any) and interest on the Debt Securities of that series are payable
as specified pursuant to Section 301.
"Predecessor Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the same debt as
that evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 306 in
lieu of a mutilated, lost, destroyed or stolen Debt Security or a Debt Security
to which a mutilated, lost, destroyed or stolen Coupon appertains shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Debt Security or the Debt Security to which the mutilated, lost, destroyed or
stolen Coupon appertains, as the case may be.
"Redemption Date" means the date fixed for redemption of any
Debt Security pursuant to this Indenture which, in the case of a Floating Rate
Security, unless otherwise specified pursuant to Section 301, shall be an
Interest Payment Date only.
"Redemption Price" means, in the case of a Discount Security,
the amount of the principal thereof that would be due and payable as of the
Redemption Date upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, and in the case of any other Debt Security, the
principal amount thereof, plus, in each case, premium, if any, and accrued and
unpaid interest, if any, to the Redemption Date.
"Registered Holder" means the Person in whose name a
Registered Security is registered in the Security Register.
"Registered Security" means any Debt Security in the form
established pursuant to Section 201 which is registered as to principal and
interest in the Security Register.
"Regular Record Date" for the interest payable on the
Registered Securities of any series on any Interest Payment Date means the date
specified for the purpose pursuant to Section 301 for such Interest Payment
Date.
"Responsible Officer" when used with respect to the Trustee
means any officer of the Trustee assigned by it to administer its corporate
trust matters.
"Restricted Period" shall have the meaning as set forth in
U.S. Treasury Regulation Section 1.163-5(c)(2)(i)(D)(7).
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305(a).
"Senior Indebtedness" means (i) any obligation of the Company
to its creditors, whether now outstanding or subsequently incurred, 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 Senior
Indebtedness, (ii) the Company's 8 3/4% Senior Notes due December 19, 1997,
(iii) the Company's 8 1/2% Debentures due November 1, 2003, (iv) the Company's
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Floating Rate Notes due December 28, 1994, and (v) the Company's 9.08% Senior
Notes due March 28, 1995.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Specified Amount" has the meaning specified in Section 310(i).
"Stated Maturity" when used with respect to any Debt Security
or any installment of principal thereof or premium thereon or interest thereon
means the date specified in such Debt Security or the Coupon, if any,
representing such installment of interest, as the date on which the principal
of such Debt Security or such installment of principal, premium or interest is
due and payable.
"Subsidiary" means a corporation, at least a majority of the
outstanding voting stock of which is owned directly or indirectly, by the
Company or by one or more 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 for so long as no senior class of stock has such voting power by reason
of any contingency.
"Tangible Stockholders' Equity" as of any date means the
aggregate of (i) capital (including all preferred stock, common stock and
capital surplus) and (ii) retained earnings, after deducting intangibles (other
than goodwill, net of accumulated amortization, existing as of December 31,
1988), any contra-equity account, and the cost of shares of capital stock held
in treasury, all as would be shown on a consolidated balance sheet of the
Company and its subsidiaries as of such date prepared in accordance with
generally accepted accounting principles.
"temporary Global Note" shall have the meaning given such term
in Section 304.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Debt Securities of any series shall mean the Trustee with
respect to Debt Securities of such series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
amended and as in force at the date as of which this instrument was executed,
except as provided in Section 1105.
"United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction (including the Commonwealth of Puerto
Rico).
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"United States Alien" means any person who, as to the United
States, is a foreign corporation, a non-resident alien individual, a
non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more members of which is, as to the United States, a foreign
corporation, a non-resident alien individual or a non-resident alien fiduciary
of a foreign estate or trust.
"U.S. Depositary" means a clearing agency registered under the
Securities Exchange Act of 1934, as amended, or any successor thereto, which
shall in either case be designated by the Company pursuant to Section 301 until
a successor U.S. Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "U.S. Depositary" shall mean or
include each Person who is then a U.S. Depositary hereunder, and if at any time
there is more than one such Person, "U.S. Depositary" as used with respect to
the Debt Securities of any series shall mean the U.S. Depositary with respect
to the Debt Securities of that series.
"U.S. Government Obligations" has the meaning specified in
Section 1502.
"U.S. Person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States, or an estate or trust the income of which
is subject to United States federal income taxation regardless of its source.
"Valuation Date" has the meaning specified in Section 310(d).
"Vice President" includes with respect to the Company and the
Trustee, any Vice President of the Company or the Trustee, as the case may be,
whether or not designated by a number or word or words added before or after
the title "Vice President".
"Voting Stock" means stock which ordinarily has 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.
"Wholly-Owned Subsidiary" means a Subsidiary of which all of
the outstanding voting stock (other than directors' qualifying shares) is at
the time, directly or indirectly, owned by the Company, or by one or more
Wholly-Owned Subsidiaries of the Company, or by the Company and one or more
Wholly-Owned Subsidiaries.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, 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
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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 covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or opinions
contained in such 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 or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of
each such individual, such condition or covenant has been complied with.
SECTION 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 a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate of opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Notices, etc., to Trustee and Company.
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Any Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with:
(1) The Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office (attention: Corporate Trust
Department), or
(2) The Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid or
airmail postage prepaid if sent from outside the United States, to the Company
addressed to it at the address of its principal office specified in the first
paragraph of this instrument, to the attention of its Treasurer, or at any
other address previously furnished in writing to the Trustee by the Company.
Any such Act or other document shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
SECTION 105. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, (1) such notice shall be sufficiently given to Registered Holders
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to such Registered Holders as their names and
addresses appear in the Security Register, within the time prescribed, and (2)
such notice shall be sufficiently given to Holders of Bearer Securities or
Coupons (unless otherwise herein expressly provided) if published at least
twice in an Authorized Newspaper or Newspapers in The City of New York and, if
Debt Securities of such series are then listed on The Stock Exchange of the
United Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or
any other stock exchange located outside the United States and such stock
exchange shall so require, in an Authorized Newspaper in London or Luxembourg
or in such other city or cities specified pursuant to Section 301 or in any
Debt Security on Business Days, the first such publication, to be not earlier
than the earliest date and not later than two Business Days prior to the latest
date prescribed for the giving of such notice: provided, however, that, in any
case, any notice to Holders of Floating Rate Securities regarding the
determination of a periodic rate of interest, if such notice is required
pursuant to Section 301, shall be sufficiently given if given in the manner
specified pursuant to Section 301. The Company shall advise the Trustee if the
rules of any such exchange located outside of the United States on which is
listed Debt Securities of a series the Holders of which are being given notice
pursuant to the preceding sentence of this paragraph requires publication of
such notice as set forth in such sentence.
In the event of suspension of regular mail service or by
reason of any other cause it shall be impracticable to give notice by mail,
such notification as shall be given with the approval of the Trustee shall
constitute sufficient notice for every purpose hereunder.
In the event of suspension of publication of any Authorized
Newspapers or by reason of any other cause it shall be impracticable to give
notice by publication, such notification
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as shall be given with the approval of the Trustee shall constitute sufficient
notice for every purpose hereunder.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance on such waiver. In any case where notice to Holders is given
by mail, neither the failure to mail such notice nor any defect in any notice
so mailed to any particular Holder, shall affect the sufficiency of such notice
with respect to other Holders, and any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given. In any
case where notice to Holders is given by publication, any defect in any notice
so published as to any particular Holder shall not affect the sufficiency of
such notice with respect to other Holders, and any notice which is published in
the manner herein provided shall be conclusively presumed to have been duly
given.
SECTION 106. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included or deemed to be
included in this Indenture by any of provisions of the Trust Indenture Act,
such required or deemed provision shall control.
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 parties
hereto shall bind their respective successors and assigns and inure to the
benefit of their permitted successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in the Debt
Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities, express
or implied, shall give to any Person, other than the parties hereto, any
Security Registrar, any Paying Agent, any Exchange Rate 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.
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This Indenture, the Debt Securities and the Coupons shall be
deemed to be contracts made and to be performed entirely in the State of New
York, and for all purposes shall be governed by and construed in accordance
with the laws of said State without regard to the conflicts of law rules of
said State.
SECTION 112. Legal Holidays.
Unless otherwise specified pursuant to Section 301 or in any
Debt Security, in any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Debt Security of any series shall not be a Business Day
at any Place of Payment for the Debt Securities of that series, then
(notwithstanding any other provision of this Indenture or of the Debt
Securities or Coupons) payment of principal (and premium, if any) or interest
need not be made at such Place of Payment on such date, 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 or at the
Stated Maturity, and no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to such Business Day if such payment is made or
duly provided for on such Business Day.
SECTION 113. No Security Interest Created.
Nothing in this Indenture or in the Debt Securities or
Coupons, express or implied, shall be construed to constitute a security
interest under the Uniform Commercial Code or similar legislation, as now or
hereafter enacted and in effect in any jurisdiction where property of the
Company or its Subsidiaries is or may be located.
SECTION 114. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of
(or premium, if any) or the interest on any Debt Securities or Coupons, or any
part thereof, or of the indebtedness represented thereby, or upon any
obligation, covenant or agreement of this Indenture, against any incorporator,
or against any stockholder, officer or director, as such, past, present or
future, of the Company (or any incorporator, stockholder, officer or director
of any predecessor or successor corporation), either directly or through the
Company (or any such predecessor or successor corporation), whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly agreed and understood
that this Indenture and all the Debt Securities and Coupons are solely
corporate obligations, and that no personal liability whatsoever shall attach
to, or be incurred by, any such incorporator, stockholder, officer or director,
past, present or future, of the Company (or any incorporator, stockholder,
officer or director of any such predecessor or successor corporation), either
directly or indirectly through the Company or any such predecessor or successor
corporation, because of the indebtedness hereby authorized or under or by
reason of any of the obligations, covenants, promises or agreements contained
in this Indenture or in any of the Debt Securities or Coupons or to be implied
herefrom or therefrom; and that any such personal liability is hereby expressly
waived and released as a condition of, and as part of the consideration for,
the execution of this Indenture and the issue of Debt Securities; provided,
however, that nothing herein or in the Debt Securities or Coupons contained
shall be taken to prevent recourse to and the enforcement of the
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liability, if any, of any stockholder or subscriber to capital stock upon or in
respect of the shares of capital stock not fully paid.
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. Forms Generally
The Debt Securities and the Coupons, if any, of each series
shall be substantially in one of the forms (including global form) established
in or pursuant to a Board Resolution or one or more indentures supplemental
hereto, and shall have such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification or designation and
such legends or endorsements placed thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation or any securities exchange on which any
series of the Debt Securities may be listed, or to conform to usage, all as
determined by the officers executing such Debt Securities and Coupons as
conclusively evidence by their execution of such Debt Securities and Coupons.
If the form of a series of Debt Securities or Coupons (or any Global Note) is
established in or pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee, together with an Officers'
Certificate setting forth the form of such series, at or prior to the delivery
of the Company Order contemplated by Section 303 for the authentication and
delivery of such Debt Securities (or any such Global Note) or Coupons. Unless
otherwise specified as contemplated by Section 301, Debt Securities in bearer
form (other than in global form) shall have coupons attached.
The definitive Debt Securities and Coupons, if any, of each series
shall be printed, lithographed or engraved or produced by any combination of
these methods on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which such series of Debt
Securities may be listed, all as determined by the officers executing such Debt
Securities and Coupons, as conclusively evidenced by their execution of such
Debt Securities and Coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
The form of the Trustee's certificate of authentication to be borne by
the Debt Securities shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
referred to in the within mentioned Indenture.
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Chemical Bank,
as Trustee
By________________________________
Authorized Officer
ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series.
There shall be established in or pursuant to a Board Resolution and (subject to
Section 303) set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of Debt Securities
of any series:
(1) the title of the Debt Securities of the
series (which shall distinguish the Debt Securities of such series from all
other series of Debt Securities);
(2) the limit, if any, upon the aggregate
principal amount of the Debt Securities of the series which may be
authenticated and delivered under this Indenture (except for Debt Securities
authenticated and delivered upon transfer of, or in exchange for, or in lieu
of, other Debt Securities of such series pursuant to Sections 304, 305, 306,
1106 or 1308);
(3) the date or dates on which or periods during
which the Debt Securities of the series may be issued, and the date or dates
(or the method of determination thereof) on which the principal of (and
premium, if any, on) the Debt Securities of such series are or may be payable
(which, if so provided in such Board Resolution or supplemental indenture) may
be determined by the Company from time to time and set forth in the Debt
Securities of the series issued from time to time);
(4) the rate or rates (or the method of
determination thereof) at which the Debt Securities of the series shall bear
interest, if any, and the dates from which such interest shall accrue (which,
in either case or both, if so provided in such Board Resolution or supplemental
indenture may be determined by the Company from time to time and set forth in
the Debt Securities of the series issued from time to time), the Interest
Payment Dates on which such interest shall be payable (or the method of
determination thereof), and, in the case of Registered Securities, the Regular
Record Dates for the interest payable on such Interest Payment Dates and, in
the case of Floating Rate Securities, the notice, if any, to Holders regarding
the determination of interest and the manner of giving such notice, and the
extent to
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which, or the manner in which, any interest payable on any Global Note on an
Interest Payment Date will be paid if other than in the manner provided in
Section 307;
(5) the place or places, if any, in addition to
or instead of the Corporate Trust Office of the Trustee (in the case of
Registered Securities) or the principal London office of the Trustee (in the
case of Bearer Securities), where the principal of (and premium, if any) and
interest on Debt Securities of the series shall be payable;
(6) the obligation, if any, of the Company to
redeem, to repay or purchase Debt Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of the Holder and the
period or periods within which or the dates on which, the prices at which and
the terms and conditions upon which Debt Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(7) the period or periods within which or the
date or dates on which, the price or prices at which and the terms and
conditions upon which Debt Securities of the series may be redeemed, if any, in
whole or in part, at the option of the Company or otherwise;
(8) if the coin or Currency in which the Debt
Securities shall be issuable is in Dollars, the denominations of such Debt
Securities if other than denominations of $1,000 and any integral multiple
thereof (except as provided in Section 304); provided that if the Currency in
which Debt Securities which are Bearer Securities shall be issuable is Dollars,
such Debt Securities may only be issued in denominations of $5,000 or integral
multiples thereof;
(9) whether the Debt Securities of the series are
to be issued as Discount Securities and the amount of discount with which such
Debt Securities may be issued and, if other than the principal amount thereof,
the portion of the principal amount of Debt Securities of the series which
shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(10) provisions, if any, for the defeasance of
Debt Securities of the series;
(11) whether Debt Securities of the series are to
be issued as Registered Securities or Bearer Securities or both, and, if Bearer
Securities are issued, the applicable certification procedures pursuant to
Section 304(d), whether Coupons will be attached thereto, whether Bearer
Securities of the series may be exchanged for Registered Securities of the
series, or whether Registered Securities of the series may be exchanged for
Bearer Securities of the series, as provided in Section 305(b) or otherwise and
the circumstances under which and the place or places at which any exchanges,
if permitted, may be made;
(12) whether the provisions of Section 1202 and
1302 or other provisions for payment of additional amounts shall apply and, if
other provisions shall apply, such other provisions, whether a procedure other
than that set forth in Section 304(b) shall apply and, if so, such other
procedure, and if the procedure set forth in Section 304(b) shall apply, the
forms of certifications to be delivered under such procedure;
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(13) if other than Dollars, the Foreign Currency
or Currencies in which Debt Securities of the series shall be denominated, or
in which payment of the principal of (and/or premium, if any) and/or interest
on the Debt Securities of the series may be made, and the particular provisions
applicable thereto and, if applicable, the amount of Debt Securities of the
series which entitles the Holder of a Debt Security of the series or proxy to
one vote for purposes of Section 905;
(14) if the principal of (and premium, if any) or
interest on Debt Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in a Currency other than that in which the
Debt Securities are denominated or payable without such election, in addition
or in lieu of the provisions of Section 310, the period or periods within which
and the terms and conditions upon which, such election may be made and the time
and the manner of determining the exchange rate or rates between the Currency
or Currencies in which the Debt Securities are denominated or payable without
such election and the Currency or Currencies in which the Debt Securities are
to be paid if such election is made;
(15) the date as of which any Bearer Securities of
the series and any global Debt Security representing any Outstanding Debt
Securities of the series shall be dated if other than the date of original
issuance of the first Debt Security of the Series to be issued;
(16) if the amount of payments of principal of
(and premium, if any) or interest on the Debt Securities of the series may be
determined with reference to an index including, but not limited to, an index
based on a Currency or Currencies other than that in which the Debt Securities
are denominated or payable, or any other type of index, the manner in which
such amounts shall be determined;
(17) if the Debt Securities of the series
denominated or payable in a Foreign Currency, any other terms concerning the
payment of principal of (and premium, if any) or any interest on such Debt
Securities (including the Currency or Currencies of payment thereof);
(18) the designation of the original Exchange Rate
Agent;
(19) the applicable Overdue Rate, if any;
(20) if the Debt Securities of the series do not
bear interest, the applicable dates for purposes of Section 701;
(21) any addition to, or modification or deletion
of, any Events of Default or covenants provided for with respect to Debt
Securities of the series; and
(22) if Bearer Securities of the series are to be
issued, in addition to or in substitution for the provisions set forth in
Sections 303, 304 and 305, (x) whether interest in respect of any portion of a
temporary Debt Security in global form (representing all of the Outstanding
Bearer Securities of the series) payable in respect of any Interest Payment
Date prior to the exchange of such temporary Debt Security for definitive Debt
Securities of the series shall be paid to any clearing organization with
respect to the portion of such temporary Debt
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Security held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest payment
received by a clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date, and (y) the terms upon which
interests in such temporary Debt Security in global form may be exchanged for
interests in a permanent Global Note or for definitive Debt Securities of the
series and the terms upon which interests in a permanent Global Note, if any,
may be exchanged for definitive Debt Securities of the series;
(23) whether the Debt Securities of the series
shall be issued in whole or in part in the form of one or more Global Notes
and, in such case, the U.S. Depositary or any Common Depositary for such Global
Note or Notes; and
(24) any other terms of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially
identical except as to denomination, rate of interest, Stated Maturity and the
date from which interest, if any, shall accrue, which, as set forth above, may
be determined by the Company from time to time as to Debt Securities of a
series if so provided in or established pursuant to the authority granted in a
Board Resolution or in any such indenture supplemental hereto, and except as
may otherwise be provided in or pursuant to such Board Resolution and (subject
to Section 303) set forth in such Officers' Certificate, or in any such
indenture supplemental hereto. All Debt Securities of any one series need not
be issued at the same time, and unless otherwise provided, a series may be
reopened for issuance of additional Debt Securities of such series.
If any of the terms of a series of Debt Securities is
established in or pursuant to a Board Resolution, a copy of such Board
Resolution shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 302. Denominations.
In the absence of any specification pursuant to Section 301
with respect to Debt Securities of any series, the Debt Securities of such
series shall be issuable only as Registered Securities in denominations of
$1,000 and any integral multiple thereof and shall be payable only in Dollars.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Debt Securities and the Coupons, if any, of any series
shall be executed on behalf of the Company by its Chairman, its President, one
of its Vice Presidents or its Treasurer, under its corporate seal reproduced
thereon and attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers may be manual or facsimile.
Debt Securities and Coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to
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<PAGE> 26
the authentication and delivery of such Debt Securities and Coupons or did not
hold such offices at the date of such Debt Securities and Coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debt Securities, with
appropriate Coupons, if any, of any series, executed by the Company, to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Debt Securities and Coupons and the Trustee
in accordance with the Company Order, which shall state whether such Debt
Securities, if they are Bearer Securities, were purchased during a Restricted
Period, shall authenticate and make available for delivery such Debt Securities
and Coupons: provided, however, that no Bearer Security that has been sold
during the Restricted Period shall be mailed or otherwise delivered to any
location in the United States; and provided, further, that a Bearer Security
may be delivered by the Company in definitive form only if the Person entitled
to receive such Bearer Security shall have furnished to the Company a
certificate substantially in the form set forth in Exhibit A to this Indenture.
If all the Debt Securities of any one series are not to be issued at one time
and if a Board Resolution or supplemental indenture relating to such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Debt Securities such as interest rate, Stated
Maturity, date of issuance and date from which interest, if any, shall accrue.
If any Debt Security shall be represented by a permanent Global Note, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Debt Security or upon exchange
of a portion of a temporary Global Note shall be deemed to be delivery in
definitive form by the Company of such beneficial owner's interest in such
permanent Global Note. Except as permitted by Section 306 or 307, the Trustee
shall not authenticate and deliver any Bearer Security unless all Coupons for
interest then matured have been detached and cancelled.
Subject to the second succeeding paragraph, the Trustee shall
be entitled to receive, and (subject to Section 601) shall be fully protected
in relying upon, prior to the authentication and delivery of the Debt
Securities and Coupons of such series, (i) the supplemental indenture or the
Board Resolution by or pursuant to which the form and terms of such Debt
Securities and Coupons have been approved, (ii) an Officers' Certificate as to
the absence of any event which is, or after notice or lapse of time or both
would become, an Event of Default, and (iii) an Opinion of Counsel stating
that:
(1) all instruments furnished by the Company to
the Trustee in connection with the authentication and delivery of such Debt
Securities and Coupons conform to the requirements of this Indenture and, in
the case of an underwritten offering of such Debt Securities, constitute
sufficient authority hereunder for the Trustee to authenticate and deliver such
Debt Securities and Coupons, or, in the case of a continuous offering of such
Debt Securities, upon delivery or such additional instruments specified in the
Company Order delivered pursuant to this Section 303, will constitute
sufficient authority hereunder for the Trustee to authenticate and deliver such
Debt Securities and Coupons;
(2) in the case of an underwritten offering of a
series of Debt Securities, the forms and terms of such Debt Securities and
Coupons have been established in conformity with the provisions of this
Indenture, or, in the case of a continuous offering of a series of Debt
Securities, the forms and terms of any such Debt Security, when completed in
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<PAGE> 27
accordance with the Company Order delivered pursuant to this Section 303, will
have been established in conformity with the provisions of this Indenture;
(3) in the event that the forms or terms of such
Debt Securities and Coupons have been established in a supplemental indenture,
the execution and delivery of such supplemental indenture has been duly
authorized by all necessary corporate action of the Company, such supplemental
indenture has been duly executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, constitutes the legally
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and subject to the availability of
the equitable remedies of specific performance or injunctive relief being
subject to the discretion of the court before which any proceeding may be
brought and subject to such other exceptions or qualifications as counsel shall
reasonably request;
(4) the execution and delivery of such Debt
Securities and Coupons have been duly authorized by all necessary corporate
action of the Company; in the case of an underwritten offering of a series of
Debt Securities, such Debt Securities and Coupons have been duly executed by
the Company, or, in the case of a continuous offering of a series of Debt
Securities, when the terms of any such Debt Security are completed in
accordance with the Company Order delivered pursuant to this Section 303 and
such Debt Security is duly executed by the Company, and, in either case,
assuming due authentication by the Trustee and delivery by the Company, such
Debt Securities constitute, and will constitute, as the case may be, the
legally valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, entitled to the benefit of the Indenture,
subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and subject to the availability of the equitable
remedies of specific performance or injunctive relief being subject to the
discretion of the court before which any proceeding may be brought and subject
to such other exceptions or qualifications as counsel shall reasonably request;
(5) all laws and requirements in respect of the
execution and delivery by the Company of such Debt Securities have been
complied with; and
(6) the amount of Debt Securities Outstanding of
such series, together with the amount of the Debt Securities to be
authenticated pursuant to the Company Order delivered pursuant to this Section
303, does not exceed any limit established under the terms of this Indenture on
the amount of Debt Securities of such series that may be authenticated and
delivered.
The Trustee shall not be required to authenticate such Debt
Securities and Coupons if the issuance of such Debt Securities and Coupons
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Debt Securities and this Indenture in a manner which is
not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
second preceding paragraph, if all Debt Securities of a series are to be
offered on a continuous basis, it shall not
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be necessary to deliver the Officers' Certificate otherwise required pursuant
to Section 301, the Company Order or the Opinion of Counsel otherwise required
pursuant to such second preceding paragraph at or prior to the time of
authentication of each such Debt Security if such documents are delivered at or
prior to the time of authentication upon original issuance of the first such
Debt Security to be issued. Each Registered Security shall be dated the date
of its authentication. Each Bearer Security (including any temporary, or
permanent or definitive Bearer Security in global form) shall be dated as of
the date of original issuance of the first Debt Security of such series to be
issued, except as otherwise provided pursuant to Section 301 with respect to
the Bearer Securities of any series.
No Debt Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Debt Security a certificate of authentication substantially in one of the
forms provided for herein duly executed by the Trustee or by an Authenticating
Agent, and such certificate upon any Debt Security shall be conclusive
evidence, and the only evidence, that such Debt Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Debt Security shall have been
duly authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Debt Security to the Trustee for
cancellation as provided in Section 308 together with a written statement
(which need not comply with Section 102) stating that such Debt Security has
never been issued and sold by the Company, for all purposes of this Indenture
such Debt Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Debt Securities; Exchange of Temporary
Global Notes for Definitive Bearer Securities.
(a) Pending the preparation of definitive Registered
Securities of any series, the Company may execute, and upon Company Order the
Trustee shall authenticate and make available for delivery, temporary
Registered Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination for
Registered Securities of such series, substantially of the tenor of the
definitive Registered Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Registered Securities may determine, as conclusively
evidenced by their execution of such Registered Securities. Every such
temporary Registered Security shall be executed by the Company and shall be
authenticated and made available for delivery by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Registered Securities in lieu of which they are issued. In the
case of any series issuable as Bearer Securities, such temporary Debt
Securities may be in global form, representing such of the Outstanding Debt
Securities of such series as shall be specified therein. Except in the case of
temporary Debt Securities in global form (which shall be exchanged in
accordance with the provisions of the following paragraphs), if temporary Debt
Securities of any series are issued, the Company will cause definitive Debt
Securities of such series to be prepared without unreasonable delay. After the
preparation of definitive Debt Securities of such series, the temporary Debt
Securities of such series shall be exchangeable for definitive Debt Securities
of such series, of a like Stated Maturity and with like terms and provisions,
upon surrender of the temporary Debt Securities of such series at the
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office or agency of the Company in a Place of Payment for such series, without
charge to the Holder, except as provided in Section 305 in connection with a
transfer. Upon surrender for cancellation of any one or more temporary Debt
Securities of any series (accompanied by any unmatured Coupons), the Company
shall execute and, upon Company Order, the Trustee shall authenticate and make
available for delivery in exchange therefor a like principal amount of
definitive Debt Securities of the same series of authorized denominations and
of a like Stated Maturity and like terms and provisions; provided, however,
unless otherwise specified pursuant to Section 301, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security;
and provided, further, that a definitive Bearer Security (including a
definitive Bearer Security in global form) shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in
Section 303. Until so exchanged, the temporary Registered Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Registered Securities of such series.
(b) Unless otherwise specified pursuant to Section 301,
all Bearer Securities of a series shall be initially issued in the form of a
single temporary Bearer Security in global form (a "temporary Global Note").
The Company shall execute, and upon Company Order the Trustee shall
authenticate, any temporary Global Note and any permanent Bearer Security in
global form (as described below, a "permanent Global Note") upon the same
conditions and in substantially the same manner, and with the same effect, as
definitive Bearer Securities, and the temporary or permanent Global Note, as
the case may be, shall, unless otherwise specified therein, be delivered by the
Trustee in accordance with the Company Order to the London office of a
depositary or common depositary (the "Common Depositary"), for the benefit of
the Euro-clear Operator or CEDEL, as the case may be, for credit to the account
of the Company (in the case of sales of Bearer Securities by the Company
directly to investors) or the managing underwriter (in the case of sales of
Bearer Securities by the Company to underwriters) or such other accounts as the
Company or the managing underwriter, respectively, may direct. On or after the
date which is 40 days after the closing of the sale of Debt Securities (the
"Exchange Date"), the Debt Securities represented by such temporary Global Note
may be exchanged for definitive Debt Securities (subject to the second
succeeding paragraph) or Debt Securities to be represented thereafter by one or
more permanent Global Notes without interest coupons. On or after the Exchange
Date such temporary Global Note shall be surrendered by the Common Depositary
to the Trustee, as the Company's agent for such purpose, at its principal
office in London (or at such other place specified outside the United States
pursuant to Section 301) and following such surrender, the Trustee shall (1)
endorse the temporary Global Note to reflect the reduction of its principal
amount by an equal aggregate principal amount of such permanent Global Note,
(2) endorse the applicable permanent Global Note, if any, to reflect the
initial amount, or an increase in the amount of Debt Securities represented
thereby, (3) manually authenticate such definitive Debt Securities or such
permanent Global Note, as the case may be, (4) deliver such definitive Debt
Securities or such permanent Global Note to the Common Depositary to be held
outside the United States for the accounts of the Euro-clear Operator or CEDEL,
as the case may be, for credit to the respective accounts at Euro-clear
Operator or CEDEL, as the case may be, designated by or on behalf of the
beneficial owners of such Debt Securities (or to such other accounts as they
may direct) and (5) redeliver such temporary Global Note to the Common
Depositary, unless such temporary Global Note shall have been cancelled in
accordance with Section 308 hereof; provided, however, that, unless otherwise
specified in such temporary Global Note, in the case of definitive Debt
Securities or a Permanent Global
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Note to be delivered in bearer form, upon such presentation by the Common
Depositary, such temporary Global Note shall be accompanied by a certificate
dated the Exchange Date, or a subsequent date and signed by the Euro-clear
Operator, as to the portion of such temporary Global Note held for its account
then to be exchanged for definitive Debt Securities or one or more permanent
Global Notes, as the case may be, and a certificate dated the Exchange Date or
a subsequent date and signed by CEDEL, as to the portion of such temporary
Global Note held for its account then to be exchanged for definitive Debt
Securities, or one or more permanent Global Notes, as the case may be, each
substantially in the form set forth in Exhibit B to this Indenture. Each
certificate substantially in the form of Exhibit B hereto of the Euro-clear
Operator or CEDEL, as the case may be, shall be based on certificates of the
account holders listed in the records of the Euro-clear Operator or CEDEL, as
the case may be, as being entitled to all or any portion of the applicable
temporary Global Note. An account holder of the Euro-clear Operator or CEDEL,
as the case may be, desiring to effect the exchange of an interest in a
temporary Global Note for an interest in definitive Debt Securities or one or
more permanent Global Notes shall instruct the Euro-clear Operator or CEDEL, as
the case may be, to request such exchange on its behalf and shall deliver to
the Euro-clear Operator or CEDEL, as the case may be, a certificate
substantially in the form of Exhibit A hereto and dated no earlier than 15 days
prior to the Exchange Date. Until so exchanged, temporary Global Notes shall
in all respects be entitled to the same benefits under this Indenture as
definitive Debt Securities and permanent Global Notes of the same series
authenticated and delivered hereunder, except as to payment of interest, if
any. The delivery to the Trustee by the Euro-clear Operator or CEDEL of any
certificate substantially in the form of Exhibit B hereto may be relied upon by
the Company and the Trustee as conclusive evidence that a corresponding
certificate or certificates has or have been delivered to the Euro-clear
Operator or CEDEL, as the case may be, pursuant to the terms of this Indenture.
On or prior to the Exchange Date, the Company shall deliver to
the Trustee definitive Debt Securities in aggregate principal amount equal to
the principal amount of such temporary Global Note, executed by the Company.
At any time, on or after the Exchange Date, upon 30 days' notice to the Trustee
by the Euro-clear Operator or CEDEL, as the case may be, acting at the request
of or on behalf of the beneficial owner, a Debt Security represented by a
temporary Global Note or a permanent Global Note, as the case may be, may be
exchanged, in whole or from time to time in part, for definitive Debt
Securities without charge and the Trustee shall, upon Company Order,
authenticate and make available for delivery, in exchange for each portion of
such temporary Global Note or such permanent Global Note, an equal aggregate
principal amount of definitive Debt Securities of the same series of authorized
denominations and of a like Stated Maturity and with like terms and conditions,
as the portion of such temporary Global Note or such permanent Global Note to
be exchanged, which, unless the Debt Securities of the series are not issuable
both as Bearer Securities and as Registered Securities, as contemplated by
Section 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 definitive Bearer Securities shall be
delivered in exchange for a portion of the temporary Global Note only in
compliance with the requirements of the second preceding paragraph. On or
prior to the forty-fifth day following receipt by the Trustee of such notice
with respect to a Debt Security (and receipt of appropriate certification
referred to in the second preceding paragraph, in the case of definitive Bearer
Securities to be received in exchange for a portion of the temporary Global
Note), or, if such day is not a Business Day, the next
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<PAGE> 31
succeeding Business Day, the temporary Global Note or the permanent Global
Note, as the case may be, shall be surrendered by the Common Depositary to the
Trustee, as the Company's agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Debt Securities without charge
following such surrender, upon the request of the Euro-clear Operator or CEDEL,
as the case may be, and the Trustee shall (1) endorse the applicable temporary
Global Note or the permanent Global Note to reflect the reduction of its
principal amount by the aggregate principal amount of such Debt Security, (2)
cause the terms of such Debt Security and Coupons, if any, to be entered on a
definitive Debt Security, (3) manually authenticate such definitive Debt
Security, and (4) deliver such definitive Debt Security outside the United
States to the Euro-clear Operator or CEDEL, as the case may be, for or on
behalf of the beneficial owner thereof, in exchange for a portion of such
temporary Global Note or the permanent Global Note. Unless otherwise specified
in such temporary Global Note or the permanent Global Note, any such exchange
shall be made free of charge to the beneficial owners of such temporary Global
Note or the permanent Global Note, except that a Person receiving definitive
Debt Securities must bear the cost of insurance, postage, transportation and
the like in the event that such Person does not take delivery of such
definitive Debt Securities in person at the offices of the Euro-clear Operator
or CEDEL. Definitive Securities in bearer form to be delivered in exchange for
any portion of a temporary Global Note or the permanent Global Note shall be
delivered only outside the United States. Notwithstanding the foregoing, in
the event of redemption or acceleration of all or any part of a temporary
Global Note prior to the Exchange Date, a permanent Global Note or definitive
Bearer Securities, as the case may be, will not be issuable in respect of such
temporary Global Note or such portion thereof, and payment thereon will instead
be made as provided in such temporary Global Note.
Until exchanged in full as hereinabove provided, any temporary
Global Note or the permanent Global Note shall in all respects be entitled to
the same benefits under this Indenture as definitive Debt Securities of the
same series and tenor authenticated and delivered hereunder, except that,
unless otherwise specified as contemplated by Section 301, interest payable on
such temporary Global Note on an Interest Payment Date for Debt Securities of
such series occurring prior to the date of receipt by the Trustee of the
certification described in the fourth preceding paragraph of this Section
304(b) substantially in the form of Exhibit B hereto shall be payable to the
Euro-clear Operator or CEDEL on such Interest Payment Date only upon delivery
by the Euro-clear Operator or CEDEL to the Trustee of a certificate or
certificates substantially in the form set forth in Exhibit B to this
Indenture, for credit without further interest on or after such Interest
Payment Date to the respective accounts of the Persons who are the beneficial
owners of such temporary Global Note on such Interest Payment Date and who have
each delivered to the Euro-clear Operator or CEDEL, as the case may be, a
certificate substantially in the form set forth in Exhibit A to this Indenture.
Any definitive Bearer Security authenticated and delivered by the Trustee in
exchange for a portion of a temporary Global Note or the permanent Global Note
shall not bear a coupon for any interest which shall theretofore have been duly
paid by the Trustee to the Euro-clear Operator or CEDEL, or by the Company to
the Trustee in accordance with the provisions of this Section 304.
(c) If the Company shall establish pursuant to Section
301 that the Registered Securities of a series are to be issued in whole or in
part in the form of one or more Global Notes, then the Company shall execute
and the Trustee shall, in accordance with Section 303 and the Company Order
with respect to such series, authenticate and make available for delivery
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one or more Global Notes in temporary or permanent form that (i) shall
represent and shall be denominated in an amount equal to the aggregate
principal amount of the Outstanding Debt Securities of such series to be
represented by one or more Global Notes, (ii) shall be registered in the name
of the U.S. Depositary for such Global Note or Notes or the nominee of such
depositary, (iii) shall be delivered by the Trustee to such depositary or
pursuant to such depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Debt Securities in definitive form, this Debt Security may
not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Notwithstanding any other provision of this Section or Section
305, unless and until it is exchanged in whole or in part for Registered
Securities in definitive form, a Global Note representing all or a portion of
the Registered Securities of a series may not be transferred except as a whole
by the U.S. Depositary for such series to a nominee of such depositary or by a
nominee of such depositary to such depositary or another nominee of such
depositary or by such depositary or any such nominee to a successor U.S.
Depositary for such series or a nominee of such successor depositary.
If at any time the U.S. Depositary for the Debt Securities of
a series notifies the Company that it is unwilling or unable to continue as
U.S. Depositary for the Debt Securities of such series or if at any time the
U.S. Depositary for Debt Securities of a series shall no longer be registered
or in good standing under the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation, the Company shall appoint a successor
U.S. Depositary with respect to the Debt Securities of such series. If a
successor U.S. Depositary for the Debt Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, the Company will execute, and the Trustee,
upon receipt of a Company Order for the authentication and delivery of
definitive Debt Securities of such series, will authenticate and make available
for delivery, Registered Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Note or
Notes representing such series in exchange for such Global Note or Notes. The
Company may at any time and in its sole discretion determine that the
Registered Securities of any series issued in the form of one or more Global
Notes shall no longer be represented by such Global Note or Notes. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Debt securities of such
series, will authenticate and make available for delivery, Registered
Securities of such series in definitive form and in an aggregate principal
amount equal to the principal amount of the Global Note or Notes representing
such series in exchange for such Global Note or Notes.
If specified by the Company pursuant to Section 301 with
respect to Registered Securities of a series, the U.S. Depositary for such
series of Registered Securities may surrender a Global Note for such series of
Debt Securities in exchange in whole or in part for Registered Securities or
such series in definitive form on such terms as are acceptable to the Company
and such depositary. Thereupon, the Company shall execute and the Trustee
shall authenticate and make available for delivery, without charge,
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(i) to each Person specified by the U.S.
Depositary a new Registered Security or Securities of the same series, of any
authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in the
Global Note; and
(ii) to the U.S. Depositary a new Global Note in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Global Note and the aggregate principal amount of Registered
Securities delivered to Holders thereof.
Upon the exchange of a Global Note for Registered Securities
in definitive form, such Global Note shall be cancelled by the Trustee. Debt
Securities issued in exchange for a Global Note pursuant to this subsection (c)
shall be registered in such names and in such authorized denominations as the
U.S. Depositary for such Global Note, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall make such Debt Securities available for delivery to the persons in whose
names such Debt Securities are so registered.
(d) With respect to Exhibits A and B to this Indenture,
the Company may, in its discretion and if required or desirable under
applicable law, substitute one or more other forms of such exhibits for such
exhibits, eliminate the requirement that any or all certificates be provided,
or change the time that any certificate may be required, provided that such
substitute form or forms or notice of elimination or change of such
certification requirement have theretofore been delivered to the Trustee with a
Company Request and such form or forms, elimination or change is reasonably
acceptable to the Trustee.
SECTION 305. Registration, Transfer and Exchange.
(a) The Company shall cause to be kept at the Corporate
Trust Office of the Trustee a register (the registers maintained in such office
and in any other office or agency of the Company in a Place of Payment being
herein sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of transfers and
exchanges of Registered Securities. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Registered Securities and registering
transfers and exchanges of Registered Securities as herein provided; provided,
however, that the Company may appoint co-Security Registrars.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained for
such purpose, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, in the name of the designated transferee, one or
more new Registered Securities of the same series of like aggregate principal
amount of such denominations as are authorized for Registered Securities of
such series bearing a number not contemporaneously outstanding and of a like
Stated Maturity and with like terms and conditions.
At the option of the Holder, Registered Securities of any
series (except Global Notes) may be exchanged for other Registered Securities
of the same series of like aggregate
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principal amount and of a like Stated Maturity and with like terms and
conditions, upon surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, the Registered Securities which the Holder making
the exchange is entitled to receive.
(b) If and to the extent specified pursuant to Section
301, the provisions of this Section 305(b) shall be applicable to Debt
Securities of any series which are Bearer Securities. At the option of the
Holder thereof, to the extent permitted by law, any Bearer Security of any
series which by its terms is registrable as to principal and interest may be
exchanged for a Registered Security of such series of like aggregate principal
amount and of like Stated Maturity and with like terms and conditions upon
surrender of such Bearer Security at the Corporate Trust Office or at any other
office or agency of the Company designated pursuant to Section 301 for the
purpose of making any such exchanges. Any Coupon Security surrendered for
exchange shall be surrendered with all unmatured Coupons and any matured
Coupons in default attached thereto. If the Holder of a Bearer Security is
unable to produce any such unmatured Coupon or Coupons or matured Coupon or
Coupons in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company or the Paying Agent
in an amount equal to the face amount of such missing Coupon or Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the Company and
the Trustee if there is furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Bearer Security shall surrender to any Paying Agent any such
missing Coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive the amount of such payment; provided,
however, that except as otherwise provided in Section 1203, interest
represented by Coupons shall be payable only upon presentation and surrender of
these coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and of a like Stated Maturity and with like terms and
conditions after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
person so surrendering the Bearer Security), and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture. The Company shall execute, and the Trustee shall authenticate and
make available for delivery, the Registered Security or Securities which the
Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer
Securities for Registered Securities will be subject to the provisions of
United States income tax laws and regulations applicable to Debt Securities in
effect at the time of such exchange.
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(c) Except as otherwise specified pursuant to Sections
301 and 1101, in no event may Registered Securities, including Registered
Securities received in exchange for Bearer Securities, be exchanged for Bearer
Securities.
(d) All Debt Securities issued upon any transfer or
exchange of Debt Securities shall be valid obligations of the Company, evidence
the same debt, and entitled to the same benefits under this Indenture, as the
Debt Securities surrendered for such transfer or exchange.
Every Registered Security presented or surrendered for
transfer or exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company, the Trustee and the Security Registrar, duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge will be made for any transfer or exchange of
Debt Securities except as provided in Section 304(b) or 306. 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, transfer or
exchange of Debt Securities, other than those expressly provided in this
Indenture to be made at the Company's own expense or without expense or without
charge to the Holders.
The Company shall not be required (i) to register, transfer or
exchange Debt Securities of any series during a period beginning at the opening
of business 15 days before the day of the transmission of a notice of
redemption of Debt Securities of such series selected for redemption under
Section 1304 and ending at the close of business on the day of such
transmission, or (ii) to register, transfer or exchange any Debt Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Debt Security being redeemed in part; provided, however, that, unless
otherwise specified pursuant to Section 301, if any Bearer Securities of any
series which pursuant to Section 305(b) or as otherwise provided pursuant to
Section 301 are exchangeable for Registered Securities are called for
redemption pursuant to Section 1302, such Bearer Security, to the extent
permitted by applicable law, may be exchanged for one or more Registered
Securities of such series as provided in Section 305(b) or otherwise during the
period preceding any Redemption Date.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt Securities.
If (i) any mutilated Debt Security or any mutilated Coupon
with the Coupon Security to which it appertains (and all unmatured Coupons
attached thereto) is surrendered to the Trustee at its Corporate Trust Office
(in the case of Registered Securities) or at its principal London office (in
the case of Bearer Securities), or (ii) the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any Debt
Security or any Coupon, and there is delivered to the Company and the Trustee
such security or indemnity as may be required by them to save each of them and
any Paying Agent harmless, and neither the Company nor the Trustee receives
notice that such Debt Security or Coupon has been acquired by a bona fide
purchaser, then the Company shall execute and upon Company Request the Trustee
shall authenticate and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Debt Security or in exchange
for the Coupon Security to which such mutilated, destroyed, lost or stolen
coupon appertained, a new Debt Security of the
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same series of like Stated Maturity and with like terms and conditions and like
principal amount, bearing a number not contemporaneously Outstanding, and, in
the case of a Coupon Security, with such Coupons attached thereto that neither
gain nor loss in interest shall result from such exchange or substitution.
In case any such mutilated, destroyed, lost or stolen Debt
Security or coupon has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Debt Security, pay the
amount due on such Debt Security or Coupon in accordance with its terms;
provided, however, that principal of (and premium, if any) and any interest on
Bearer Securities shall, except as otherwise provided in Section 1203, 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 Debt Security under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debt Security or Coupon of any series issued
pursuant to this Section shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security or Coupon shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Debt Securities or Coupons of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Debt
Securities or Coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
(a) Interest on any Registered Security which is payable
and is punctually paid or duly provided for on any Interest Payment Date shall
be paid to the Person in whose name such Registered Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest notwithstanding the cancellation of such
Registered Security upon any transfer or exchange subsequent to the Regular
Record Date. Payment of interest on Registered Securities shall be made at the
offices of the Paying Agent or Paying Agents specified pursuant to Section 301
or, at the option of the Company, by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or, if,
and to the extent, provided pursuant to Section 301, at the option of the
Registered Holder by wire transfer to an account designated by the Registered
Holder.
(b) Subject to the certification requirements set forth
in the fifth paragraph of Section 304(b), interest on any Coupon Security which
is payable and is punctually paid or duly provided for on any Interest Payment
Date shall be paid to the Holder of the Coupon which has matured on such
Interest Payment Date upon surrender of such Coupon on such Interest Payment
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Date at the principal London office of the Trustee or at such other Place of
Payment outside the United States specified pursuant to Section 301.
Subject to the certification requirements set forth in the
fifth paragraph of Section 304(b), interest on any Bearer Security (other than
a Coupon Security) which is payable and is punctually paid or duly provided for
on any Interest Payment Date shall be paid to the Holder of the Bearer Security
upon presentation of such Bearer Security and notation thereon on such Interest
Payment Date at the principal London office of the Trustee or at such other
Place of Payment outside the United States specified pursuant to Section 301.
Unless otherwise specified pursuant to Section 301, at the
direction of the Holder of any Bearer Security or Coupon payable in Dollars,
payment on such Bearer Security or Coupon will be made by check drawn on a bank
in The City of New York or, if agreeable to the Trustee, by wire transfer to a
Dollar account maintained by such Holder outside the United States. If such
payment at the offices of all Paying Agents outside the United States becomes
illegal or is effectively precluded because of the imposition of exchange
controls or similar restrictions on the full payment or receipt of such amounts
in Dollars, the Company will appoint an office or agent in the United States at
which such payment may be made. Unless otherwise specified pursuant to Section
301, at the direction of the Holder of any Bearer Security or Coupon payable in
a Foreign Currency, payment on such Bearer Security or Coupon will be made by a
check drawn on a bank outside the United States or by wire transfer to an
appropriate account maintained by such Holder outside the United States. Except
as provided in this paragraph, no payment on any Bearer Security or Coupon will
be made by mail to an address in the United States or by wire transfer to an
account in the United States.
(c) Any interest on any Debt Security which is payable
but is not punctually paid or duly provided for on any Interest Payment Date
(herein called "Defaulted Interest") shall, if such Debt Security is a
Registered Security, forthwith cease to be payable to the Registered Holder on
the relevant Regular Record Date by virtue of his having been such Registered
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names such Registered Securities (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each such Registered Security and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money in the
Currency or Currency unit in which the Debt Securities of such series are
payable (except as otherwise specified pursuant to Section 301 or 310) 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 date 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
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payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to the Holders of such
Registered Securities at their addresses as they appear in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names such Registered Securities (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause
(2).
(2) The Company may make payment of any Defaulted
Interest on Registered Securities in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Registered
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
(d) Any Defaulted Interest payable in respect of Bearer
Securities of any series shall be payable pursuant to such procedures as may be
satisfactory to the Trustee in such manner that there is no discrimination
between the Holders of Registered Securities (if any) and Bearer Securities of
such series, and notice of the payment date therefor shall be given by the
Trustee, in the name and at the expense of the Company, in the manner provided
in Section 105 not more than 25 days and not less than 20 days prior to the
date of the proposed payment.
(e) Subject to the foregoing provisions of this Section,
each Debt Security delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Debt Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debt Security.
SECTION 308. Cancellation.
Unless otherwise specified pursuant to Section 301 for Debt
Securities of any series, all Debt Securities surrendered for payment,
redemption, transfer, exchange or credit against any sinking fund and all
Coupons surrendered for payment or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee. All Registered Securities
and matured Coupons so delivered shall be promptly cancelled by the Trustee.
All Bearer Securities and unmatured Coupons so delivered shall be held by the
Trustee and, upon instruction by Company Order, shall be cancelled or held for
reissuance. Bearer Securities and unmatured Coupons held for reissuance may be
reissued only in exchange for Bearer Securities of the same series and of like
Stated Maturity and with like terms and conditions pursuant to Section 305 or
in replacement of mutilated, lost, stolen or destroyed Bearer Securities of the
same series and of like Stated Maturity and with like terms and conditions or
the related Coupons pursuant to Section 306. All Bearer Securities and
unmatured Coupons held by the Trustee pending such cancellation or reissuance
shall be deemed to be delivered for cancellation for all purposes of this
Indenture and the Securities. The Company may at any time deliver to the
Trustee for cancellation any Debt Securities or Coupons previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may
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deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Debt Securities previously authenticated hereunder which the
Company has not issued, and all Debt Securities or Coupons so delivered shall
be promptly cancelled by the Trustee. No Debt Securities or coupons shall be
authenticated in lieu of or in exchange for any Debt Securities or Coupons
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Debt Securities and Coupons held by the Trustee shall
be destroyed by the Trustee unless, by Company Order or Company Request, the
Company directs the return to it of such cancelled Debt Securities and Coupons.
The acquisition of any Debt Securities or Coupons by the Company shall not
operate as a redemption or satisfaction of the indebtedness represented thereby
unless and until such Debt Securities or Coupons are surrendered to the Trustee
for cancellation. In the case of any temporary Global Note which shall be
destroyed if the entire aggregate principal amount of the Debt Securities
represented thereby has been exchanged, the certificate of destruction shall
state that all certificates required pursuant to Section 304 hereof and
substantially in the form of Exhibit B hereto, to be given by the Euro-clear
Operator or CEDEL, have been duly presented to the Trustee by the Euro-clear
Operator or CEDEL, as the case may be. Permanent Global Notes shall not be
destroyed until exchanged in full for definitive Debt Securities or until
payment thereon is made in full.
SECTION 309. Computation of Interest.
Except as otherwise specified pursuant to Section 301 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 310. Currency Debt Securities.
(a) Except as otherwise specified pursuant to Section 301
for Bearer Securities of any series, payment of the principal of (and premium,
if any) and interest on Bearer Securities of such series denominated in any
Currency will be made in such Currency.
(b) With respect to Registered Securities of any series
not permitting the election provided for in paragraph (c) below or the Holders
of which have not made the election provided for in paragraph (c) below, except
as provided in Paragraph (e) below, payment of the principal of (and premium,
if any) and any interest on any Registered Security of such series will be made
in the Currency in which such Registered Security is payable.
(c) It may be provided pursuant to Section 301 with
respect to the Registered Securities of any series that Holders shall have the
option, subject to paragraphs (e) and (f) below, to receive payments of
principal of (and premium, if any) and any interest on such Registered
Securities in any of the Currencies which may be designated for such election
by delivering to the Trustee a written election, to be in form and substance
satisfactory to the Trustee, not later than the close of business on the
Election Date immediately preceding the applicable payment date. If a Holder
so elects to receive such payments in any such Currency, such 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 (but any
such change must be made not later than the close of business on the Election
Date immediately preceding the next payment date to be effective for the
payment to be made on such payment date and no
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such change or election may be made with respect to payments to be made on any
Registered Security of such series with respect to which an Event of Default
has occurred or notice of redemption has been given by the Company pursuant to
Article Thirteen). Any Holder of any such Registered Security who shall not
have delivered any such election to the Trustee by the close of business on the
applicable Election Date will be paid the amount due on the applicable payment
date in the relevant Currency as provided in paragraph (b) of this Section 310.
(d) If the election referred to in paragraph (c) above
has been provided for pursuant to Section 301, then not later than the fourth
Business Day after the Election Date for each payment date, the Trustee will
deliver to the Company a written notice specifying, in the Currency in which
each series of the Registered Securities are payable, the respective aggregate
amounts of principal of (and premium, if any) and any interest on the
Registered Securities to be paid on such payment date, specifying the amounts
so payable in respect of the Registered Securities as to which the Holders of
Registered Securities denominated in any Currency shall have elected to be paid
in another Currency as provided in paragraph (c) above. The Currency amount
receivable by Holders of Registered Securities who have elected payment in a
Currency as provided in paragraph (c) above shall be determined by the Exchange
Rate Agent on the basis of the applicable Market Exchange Rate in effect on the
second Business Day (the "Valuation Date") immediately preceding each payment
date.
(e) If a Conversion Event occurs with respect to a
Foreign Currency, the ECU or any other Currency unit in which any of the
Securities are denominated or payable other than pursuant to an election
provided for pursuant to paragraph (c) above, then with respect to each date
for the payment of principal of (and premium, if any) and any interest on the
applicable Foreign Currency, the ECU or such other Currency unit occurring
after the last date on which such Foreign Currency, the ECU or such other
Currency unit was used (the "Conversion Date"), the Dollar shall be the
Currency of payment for use on each such payment date. The Dollar amount to be
paid by the Company to the Trustee and by the Trustee or any Paying Agent to
the Holders of such Registered Securities with respect to such payment date
shall be the Dollar Equivalent of the Foreign Currency or, in the case of a
Currency Unit, the Dollar Equivalent of the Currency Unit, in each case as
determined by the Exchange Rate Agent, if any, or, if there shall not be an
Exchange Rate Agent, then by the Trustee, in the manner provided in paragraph
(g) or (h) below.
(f) If the Holder of a Registered Security denominated in
any Currency shall have elected to be paid in another Currency as provided in
paragraph (c) above, and a Conversion Event occurs with respect to such elected
Currency, such Holder shall receive payment in the Currency in which payment
would have been made in the absence of such election. If a Conversion Event
occurs with respect to the Currency in which payment would have been made in
the absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (e) of this Section 310.
(g) The "Dollar Equivalent of the Foreign Currency" shall
be determined by the Exchange Rate Agent, if any, or, if there shall not be an
Exchange Rate Agent, then by the Trustee, and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
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(h) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent, if any, or, if there shall not be an
Exchange Rate Agent, then by the Trustee, and subject to the provisions of
paragraph (i) below, shall be the sum of each amount obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market Exchange
Rate for such Component Currency on the Valuation Date with respect to each
payment.
(i) For purposes of this Section 310 the following terms
shall have the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a Component Currency of the relevant Currency
unit, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
were represented in the relevant Currency unit, including, but not
limited to, the ECU, on the Conversion Date. If after the Conversion
Date the official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are
consolidated into a single Currency, the respective Specified Amounts
of such Component Currencies shall be replaced by an amount in such
single Currency equal to the sum of the respective Specified Amounts
of such consolidated Component Currencies expressed in such single
Currency, and such amount shall thereafter be a Specified Amount and
such single Currency shall thereafter be a Component Currency. If
after the Conversion Date any Component Currency shall be divided into
two or more Currencies, the Specified Amount of such Component
Currency shall be replaced by amounts of such two or more Currencies
with appropriate Dollar equivalents at the Market Exchange Rate on the
date of such replacement equal to the dollar equivalent of the
Specified Amount of such former Component Currency at the Market
Exchange Rate on such date, and such amounts shall thereafter be
Specified Amounts and such Currencies shall thereafter be Component
Currencies. If, after the Conversion Date of the relevant Currency
unit, including but not limited to, the ECU, a Conversion Event (other
than any event referred to above in this definition of "Specified
Amount") occurs with respect to any Component Currency of such
Currency unit, the Specified Amount of such Component Currency shall,
for purposes of calculating the Dollar Equivalent of the Currency
Unit, be converted into Dollars at the Market Exchange Rate in effect
on the Conversion Date of such Component Currency.
"Election Date" shall mean the record date with respect to any
payment date, and with respect to the Maturity shall mean the record
date (if within 16 or fewer days prior to the Maturity) immediately
preceding the Maturity, and with respect to any series of Debt
Securities whose record date immediately preceding the Maturity is
more than 16 days prior to the maturity or any series of Debt
Securities for which no record dates are provided with respect to
interest payments, shall mean the date which is 16 days prior to the
Maturity.
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(j) All decisions and determinations of the Trustee or
the Exchange Rate Agent, if any, regarding the Dollar Equivalent of the Foreign
Currency, the Dollar Equivalent of the Currency Unit and the Market Exchange
Rate shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company
and all Holders of the Debt Securities denominated or payable in the relevant
Currency. In the event of a Conversion Event with respect to a Foreign
Currency, the Company, after learning thereof, will immediately give written
notice thereof to the Trustee (and the Trustee will promptly thereafter give
notice in the manner provided in Section 105 to the Holders) specifying the
Conversion Date. In the event of a Conversion Event with respect to the ECU or
any other Currency in which Securities are denominated or payable, the Company,
after learning thereof, will immediately give notice thereof to the Trustee
(and the Trustee will promptly thereafter give written notice in the manner
provided in Section 105 to the Holders) specifying the Conversion Date and the
Specified Amount of each Component Currency on the Conversion Date. In the
event of any subsequent change in any Component Currency as set forth in the
definition of Specified Amount above, the Company, after learning thereof, will
similarly give written notice to the Trustee. The Trustee shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent, if any, and shall not otherwise
have any duty or obligation to determine such information independently.
(k) For purposes of any provision of the Indenture where
the Holders of Outstanding Debt Securities may perform an Act which requires
that a specified percentage of the Outstanding Debt Securities of all series
perform such Act and for purposes of any decision or determination by the
Trustee of amounts due and unpaid for the principal (and premium, if any) and
interest on the Debt Securities of all series in respect of which moneys are to
be disbursed ratably, the principal of (and premium, if any) and interest on
the Outstanding Debt Securities denominated in a Foreign Currency will be the
amount in Dollars based upon the Market Exchange Rate for Debt Securities of
such series, as of the original issue date of the applicable Debt Securities,
in relation to an entitlement to perform such Act, or as of the date of such
decision or determination by the Trustee, as the case may be.
SECTION 311. Judgments.
If for the purpose of obtaining a judgment in any court with
respect to any obligation of the Company hereunder or under any Debt Security,
it shall become necessary to convert into any other Currency any amount in the
Currency due hereunder or under such Debt Security, then such conversion shall
be made at the Market Exchange Rate as in effect on the date the Company shall
make payment to any Person in satisfaction of such judgment. If pursuant to
any such judgment, conversion shall be made on a date other than the date
payment is made and there shall occur a change between such Market Exchange
Rate and the Market Exchange Rate as in effect on the date of payment, the
Company agrees to pay such additional amounts (if any) as may be necessary to
ensure that the amount paid is equal to the amount in such other Currency
which, when converted at the Market Exchange Rate as in effect on the date of
payment or distribution, is the amount then due hereunder or under such Debt
Security. Any amount due from the Company under this Section 311 shall be due
as a separate debt and is not to be affected by or merged into any judgment
being obtained for any other sums due hereunder or in respect of any Debt
Security. In no event, however, shall the Company be
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required to pay more in the Currency or Currency unit due hereunder or under
such Debt Security at the Market Exchange Rate as in effect when payment is
made than the amount of Currency stated to be due hereunder or under such Debt
Security so that in any event the Company's obligations hereunder or under such
Debt Security will be effectively maintained as obligations in such Currency,
and the Company shall be entitled to withhold (or be reimbursed for, as the
case may be) any excess of the amount actually realized upon any such
conversion over the amount due and payable on the date of payment or
distribution.
SECTION 312. Exchange Upon Default.
If default is made in the payments referred to in Sections
1201 or 1202, the Company hereby undertakes that upon presentation and
surrender of a permanent Global Note to the Trustee (or to any other Person or
at any other address as the Company may designate in writing), on any Business
Day on or after the maturity date thereof the Company will issue and the
Trustee will authenticate and deliver to the bearer of such permanent Global
Note duly executed and authenticated definitive Debt Securities with the same
issue date and maturity date as set out in such permanent Global Note.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture, with respect to the Debt Securities of any
series (if all series issued under this Indenture are not to be affected),
shall, upon Company Request, cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of such Debt
Securities herein expressly provided for and rights to receive payments of
principal (and premium, if any) and interest on such Debt Securities) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Debt Securities and the Coupons, if any,
of such series theretofore authenticated and delivered (other than (i) Debt
Securities and Coupons of such series which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306, (ii) Coupons
appertaining to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is not required or
has been waived under Section 305, (iii) Coupons appertaining to Bearer
Securities called for redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in Section 1307, and (iv)
Debt Securities and Coupons of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 1204) have been delivered to the Trustee for cancellation;
or
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(B) all Debt Securities and the Coupons, if any,
of such series not theretofore delivered to the Trustee for cancellation.
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving
of notice by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) of this subclause (B), has
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust for such purpose an amount in the Currency in which such Debt
Securities are denominated (except as otherwise provided pursuant to Sections
301 or 310) sufficient to pay and discharge the entire indebtedness on such
Debt Securities for principal (and premium, if any) and interest to the date of
such deposit (in the case of Debt Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be; provided,
however, in the event a petition for relief under the Federal bankruptcy laws,
as now or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law, is filed with respect to the
Company within 91 days after the deposit and the Trustee is required to return
the deposited money to the Company, the obligations of the Company under this
Indenture with respect to such Debt Securities shall not be deemed terminated
or discharged:
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company:
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture with respect to such series have been complied with; and
(4) the Company has delivered to the Trustee an Opinion
of Counsel to the effect that the Company has received from or there has been
published by the Internal Revenue Service a ruling to the effect that Holders
of the Debt Securities of the series will not recognize income, gain or loss
for Federal income tax purposes as a result of such deposit and discharge.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Company to any Authenticating Agent under Section 614 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 1204, shall survive. If, after the deposit referred to in
Section 401 has been made, (x) the Holder of a Debt Security is entitled to,
and does, elect pursuant to Section 310(c), to receive payment in a Currency
other than that in which the deposit pursuant to Section 401 was made, or (y)
if a Conversion Event occurs with respect to the Currency in which the deposit
was made or elected to be received by the Holder pursuant to Section 310(c),
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then the indebtedness represented by such Debt Security shall be fully
discharged to the extent that the deposit made with respect to such Debt
Security shall be converted into the Currency in which such payment is made.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1204, 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 Debt
Securities and Coupons, if any, and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for whose payment such money
has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default" wherever used herein with respect to Debt
Securities of any series means any one of the following events (whatever the
reason for such Event of Default and whether it shall be occasioned by the
provisions of Article Sixteen or be voluntary or involuntary or be effected by
operation of law, pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):
(1) the entry of a decree or order for relief in respect
of the Company by a court having jurisdiction in the premises in an involuntary
case or proceeding under any applicable federal or state bankruptcy, insolvency
or other similar law now or hereinafter in effect, or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of the Company or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days;
(2) the commencement by the Company of a voluntary case
under any applicable federal or state bankruptcy, insolvency or other similar
law now or hereinafter in effect, or the consent by the Company to the entry of
a decree or order for relief in an involuntary case under any such law or to
the appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Company or of any substantial
part of the property of the Company, or the making by the Company of an
assignment for the benefit of creditors, or the admission by the Company 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) if specified in the resolution adapted by the Board
of Directors with
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respect to Debt Securities of a series, any other Event of Default provided
with respect to Debt Securities of such series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Debt 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
Outstanding Debt Securities of such series may declare the principal amount
(or, if any Debt Securities of such series are Discount Securities, such
portion of the principal amount of such Discount Securities as may be specified
in the terms of such Discount Securities) of all the Debt Securities of such
series to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders) and upon any such declaration such
principal amount (or specified amount) shall become immediately due and
payable. Upon payment of such amount in the Currency in which such Debt
Securities are denominated (except as otherwise provided pursuant to Sections
301 or 310), all obligations of the Company in respect of the payment of
principal of the Debt Securities of such series shall terminate. At any time
after such a declaration of acceleration with respect to Debt Securities of any
series has been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter provided in this Article,
the Holders of a majority in principal amount of the Outstanding Debt
Securities of such series, by written notice to the Company and the Trustee,
may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a
sum in the Currency in which such Debt Securities are denominated (except as
otherwise provided pursuant to Sections 301 or 310) sufficient to pay
(A) all overdue installments of interest on all
Debt Securities or all overdue payments with respect to any Coupons of such
series;
(B) the principal of (and premium, if any, on)
any Debt Securities of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Debt Securities;
(C) to the extent that payment of such interest
is lawful, interest upon overdue installments of interest on each Debt Security
or upon overdue payments on any Coupons at the Overdue Rate, 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 due it under Section 607 hereof;
provided, however, that all sums payable under this clause (D) shall be paid in
Dollars; and
(2) All Events of Default with respect to Debt Securities
of such series, other than the nonpayment of the principal of Debt Securities
of such series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
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No such rescission and waiver 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 on any Debt Security or any payment with respect to any
Coupons when such interest or payment becomes due and payable and such default
continues for a period of 30 days,
(2) default is made in the payment of principal
of (or premium, if any, on) any Debt Security at the Maturity thereof,
(3) default is made in the making or satisfaction
of any sinking fund payment or analogous obligation when the same becomes due
pursuant to the terms of the Debt Securities or any series,
(4) default is made by the Company, subject to
the provisions of Section 1211, in the observance and performance of the
covenants contained in Sections 1207-1209, or
(5) default is made in the performance, or a
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 expressly has been
included in this Indenture solely for the benefit of Debt Securities of a
series other than such series) occurs, and such default or breach continues for
a period of 90 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Debt Securities
of such series, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities or of such Coupons, the amount then due and
payable on such Debt Securities or matured Coupons, for the principal (and
premium, if any) and interest, if any, and, to the extent that payment of such
interest shall be legally enforceable, interest upon the overdue principal (and
premium, if any) and upon overdue installments of interest, at the Overdue
Rate; and, 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 amount forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Debt
Securities and Coupons, and collect the moneys adjudged or decreed to be
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payable in the manner provided by law out of the property of the Company or any
other obligor upon such Debt Securities and Coupons wherever situated.
If an Event of Default with respect to Debt Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Debt Securities
and Coupons of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 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 proceedings, or any voluntary or involuntary case under the
Federal bankruptcy laws, as now or hereafter constituted, relative to the
Company or any other obligor upon the Debt Securities and Coupons, if any, of a
particular series or the property of the Company or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of such
Debt Securities shall then be due and payable as therein expressed or by
declaration of acceleration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(i) to file and prove a claim for the whole
amount of principal (or, if the Debt Securities of such series are Discount
Securities, such portion of the principal amount as may be due and payable with
respect to such series pursuant to a declaration in accordance with Section
502) (and premium, if any) and interest owing and unpaid in respect of the Debt
Securities and Coupons of such series and to file such other papers or
documents 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 of such Debt Securities and Coupons allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator or
other similar official in any such proceeding is hereby authorized by each such
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to such Holders, to pay
to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Debt Securities and any Coupons of such
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series or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Debt
Securities.
All rights of action and claims under this Indenture or the
Debt Securities and the Coupons, if any, of any series may be prosecuted and
enforced by the Trustee without the possession of any of such Debt Securities
or Coupons or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name,
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Debt Securities or 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
(and premium, if any) or interest, upon presentation of the Debt Securities or
Coupons of any series in respect of which money has been collected and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid;
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities or
Coupons of such series, in respect of which or for the benefit of which such
money has been collected ratably, without preference or priority of any kind,
according to the amounts due and payable on such Debt Securities or Coupons for
principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Debt Security or Coupon of any series shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written
notice to the Trustee of a continuing Event of Default with respect to such
series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Debt Securities of such series shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
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(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Debt Securities of such
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders or of the Holders of Outstanding Debt Securities or Coupons of any
other series, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders. For the protection and enforcement of the provisions of this Section
507, each and every Holder of Debt Securities or Coupons of any series and the
Trustee for such series shall be entitled to such relief as can be given at law
or in equity.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Debt Security or of any Coupon shall have the right, which is
absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 307) interest on such Debt Security or
Coupon on the respective Stated Maturity or Maturities expressed in such Debt
Security or Coupon (or, in the case of redemption, on the Redemption Date) and
to institute suit for the enforcement of any such payment and interest thereon,
and such right shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise expressly provided elsewhere in this
Indenture, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted
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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 to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
any acquiescence therein. Every right and remedy given by this Indenture or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Debt Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust power conferred on the Trustee with respect
to the Debt Securities of such series, provided, that
(1) such direction shall not be in conflict with
any rule of law or with this Indenture;
(2) subject to the provisions of Section 601, the
Trustee shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Responsible Officers
of the Trustee, determine that the proceeding so directed would be unjustly
prejudicial to the Holders of Debt Securities of such series not joining in any
such direction or would expose the Trustee to personal liability; and
(3) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any series may on behalf of the Holders of
all the Debt Securities of any such series waive 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 on any Debt Security of such series, or in the
payment of any sinking fund installment or analogous obligation with respect to
the Debt Securities of such series, or
(2) in respect of a covenant or provision hereof
which pursuant to Article Eleven cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of such series
affected.
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Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of the Debt Securities of such series under this Indenture, but
no such waiver shall extend to any subsequent or other default or impair any
right consequent thereto.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Debt Security or any Coupon by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit other than the Trustee of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder or group of Holders holding in
the aggregate more than 10% in principal amount of the Outstanding Debt
Securities of any series, or to any suit instituted by any Holder of a Debt
Security or Coupon for the enforcement of the payment of the principal of (or
premium, if any) or interest on such Debt Security or the payment of any Coupon
on or after the respective Stated Maturity or Maturities expressed in such Debt
Security or Coupon (or, in the case of redemption, on or after the Redemption
Date).
SECTION 515. 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 the 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. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default
with respect to the Debt Securities of any series:
(1) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee; and
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(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by any provisions
hereof are specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Debt
Securities of any series has occurred and is continuing, the Trustee shall,
with respect to the Debt Securities of such series, exercise such of the rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to
limit the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect
to any action taken, suffered or omitted to be taken by it with respect to Debt
Securities of any series in good faith in accordance with the direction of the
Holders of a majority in principal amount of the Outstanding Debt Securities of
such series relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture; and
(4) the Trustee shall not be required to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to Debt Securities or Coupons, if any, of any series the Trustee
shall by the pertinent methods provided in Section 105 give notice to all
Holders of Debt Securities and Coupons of such series of such
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default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default in
the payment of the principal of (or premium, if any) or interest on any Debt
Security or Coupon of such series or in the payment of any sinking fund
installment with respect to Debt Securities of such series, the Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of Debt Securities
and of Coupons of such series; and provided, further, that in the case of any
default of the character specified in Section 503(5) with respect to Debt
Securities of such series no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to debt Securities of
such series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(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, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors shall be sufficiently evidenced by
a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture, at the request or
direction of any of the Holders of Debt Securities of any series pursuant to
this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
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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, including an Exchange Rate Agent or attorneys and the Trustee shall not
be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed,
upon advice of counsel, by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
SECTION 604. Not Responsible for Recitals or Issuance of Debt
Securities.
The recitals contained herein and in the Debt Securities,
except the Trustee's certificates of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities or Coupons, if any, of
any series. The Trustee shall not be accountable for the use or application by
the Company of any Debt Securities or the proceeds thereof.
SECTION 605. May Hold Debt Securities.
The Trustee, any Paying Agent, the Security Registrar or any
other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Debt Securities or Coupons, and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Paying Agent, Security Registrar or such other
agent.
SECTION 606. Money Held in Trust.
Money in any Currency held by the Trustee or any Paying Agent
in trust hereunder need not be segregated from other funds except to the extent
required by law. Neither the Trustee nor any Paying Agent shall be under any
liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such
compensation in Dollars as the Company and Trustee shall from time to time
agree for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a trustee
of an express trust);
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(2) except as otherwise expressly provided
herein, to reimburse the Trustee in Dollars upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the compensation and
the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify in Dollars each of the Trustee
or any predecessor Trustee for, and to hold it harmless against, any and all
loss, damage, claim, liability or expense including taxes (other than taxes
based upon, measured or determined by the income of the Trustee) arising out of
or in connection with the acceptance or administration of this trust or
performance of its duties hereunder including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder except to the extent
any such loss, damage, claim, 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 lien prior to the Debt
Securities and Coupons, if any, upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the payment of amounts
due on the Debt Securities and Coupons.
The obligations of the Company under this Section 607 shall
constitute additional indebtedness under this Indenture and shall survive the
satisfaction and discharge of this Indenture.
The Trustee for the purposes of this Section 607 shall include
any predecessor Trustee provided that the negligence or bad faith of any
Trustee shall not affect the rights or any other Trustee hereunder.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section with respect to the Debt Securities of any
series, it shall, within 90 days after ascertaining that it has such
conflicting interest, and if the default (as defined in subsection (c) of this
Section) to which such conflicting interest relates has not been cured or duly
waived or otherwise eliminated before the end of such 90-day period, the
Trustee shall either eliminate such conflicting interest or resign, except as
otherwise provided below, with respect to the Debt Securities of such series in
the manner and with the effect hereinafter specified in this Article, and the
Company shall take prompt steps to have a successor appointed in the manner
provided in this Indenture.
(b) In the event that the Trustee shall fail to comply
with the provisions of subsection (a) of this Section with respect to the Debt
Securities of any series, the Trustee shall, within 10 days after the
expiration of such 90-day period, transmit by mail to all Holders of Debt
Securities of such series in the manner and to the extent provided in Section
105, notice of such failure.
Subject to the provisions of Section 514 hereof, unless the
Trustee's duty to resign is stayed as provided below in this Section, any
security holder who has been a bona fide holder of Debt Securities for at least
six months may, on behalf of himself and all others similarly
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situated, petition any court of competent jurisdiction for the removal of the
Trustee, and the appointment of a successor, if the Trustee fails, after
written request thereof by such holder, to comply with the provisions of
subsection (a) of this Section.
(c) For the purposes of this Section, the Trustee shall
be deemed to have a conflicting interest with respect to the Debt Securities of
any series, if the Debt Securities are in default (as defined in this
Indenture) and
(1) the Trustee is trustee under this Indenture
with respect to the Outstanding Debt Securities of any series other than that
series or is trustee under another indenture under which any other securities,
or certificates of interest or participation in any other securities, of the
Company are outstanding, unless such indenture securities are collateral trust
notes under which the only collateral consists of securities issued under
another indenture or such other indenture is a collateral trust indenture under
which the only collateral consists of Debt Securities issued under this
Indenture, provided that there shall be excluded from the operation of this
paragraph the Indenture under which the Company's 8 3/4% Senior Notes due
December 19, 1997 were issued, the Indenture under which the Company's 8 1/2%
Debentures due November 1, 2003 were issued, the Indenture under which the
Company's Floating Rate Notes due December 28, 1994 were issued and the
Indenture under which the Company's 9.08% Senior Notes due March 28, 1995 were
issued, and provided further that there shall be excluded from the operation of
this paragraph of this Indenture with respect to the Debt Securities of any
series other than that series and any other indenture or indentures under which
other securities, or certificates of interest or participation in other
securities, of the Company are outstanding, if
(i) this Indenture and such other
indenture or indentures (and all series of securities issuable thereunder) are
wholly unsecured and rank equally and such other indenture or indentures are
hereafter qualified under the Trust Indenture Act, unless the Commission shall
have found and declared by order pursuant to Section 305(b) or Section 307(c)
of the Trust Indenture Act that differences exist between the provisions of
this Indenture with respect to the Debt Securities of such series and one or
more other series or the provisions of such other indenture or indentures which
are so likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under this Indenture with respect to
the Debt Securities of such series and such other series or under such other
indenture or indentures, or
(ii) the Company shall have sustained the
burden of proving, on application to the Commission and after opportunity for
hearing thereon that trusteeship under this Indenture with respect to the Debt
Securities of such series and such other series or such other indenture or
indentures is not so likely to involve a material conflict of interest as to
make it necessary in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under this Indenture with respect to
the Debt Securities of such series and such other series or under such other
indenture or indentures;
(2) the Trustee or any of its directors or
executive officers is an underwriter for the Company or any other obligor upon
the Debt Securities;
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(3) the Trustee directly or indirectly controls
or is directly or indirectly controlled by or is under direct or indirect
common control with an underwriter for the Company or any other obligor upon
the Debt Securities;
(4) the Trustee or any of its directors or
executive officers is a director, officer, partner, employee, appointee or
representative of the Company, or of an underwriter (other than the Trustee
itself) for the Company who is currently engaged in the business of
underwriting, except that (i) one individual may be a director or an executive
officer, or both, of the Trustee and a director or an executive officer, or
both, of the Company but may not be at the same time an executive officer of
both the Trustee and the Company; (ii) if and so long as the number of
directors of the Trustee in office is more than nine, one additional individual
may be a director or an executive officer, or both, of the Trustee and a
director of the Company; and (iii) the Trustee may be designated by the Company
or by an underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent, or depositary,
or in any other similar capacity, or subject to the provisions of paragraph (1)
of this subsection, to act as trustee, whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the
Trustee is beneficially owned either by the Company or by any director, partner
or executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or 10% or
more of the voting securities of the Trustee is beneficially owned either by an
underwriter for the Company or by any director, partner or executive officer
thereof, or is beneficially owned, collectively, by any two or more such
persons;
(6) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is in default (as
hereafter in this subsection defined), (i) 5% or more of the voting securities,
or 10% or more of any other class of security, of the Company not including the
Debt Securities issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or (ii) 10% or more of
any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is in default, 5% or more
of the voting securities of any person who, to the knowledge of the Trustee,
owns 10% or more of the voting securities of, or controls directly or
indirectly or is under direct or indirect common control with, the Company;
(8) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is in default, 10% or more
of any class of security of any person who, to the knowledge of the Trustee,
owns 50% or more of the voting securities of the Company;
(9) the Trustee owns, on the date of default upon
any of the Debt Securities or any anniversary of such default while such
default upon any of the Debt Securities remains outstanding in the capacity of
executor, administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an aggregate of 25%
or more of the voting securities, or of any class of security, of any person,
the beneficial ownership of a specified percentage of which would have
constituted a conflicting interest under paragraph (6), (7) or (8) of this
subsection. As to any such securities of which the Trustee
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acquired ownership through becoming executor, administrator, or testamentary
trustee of an estate which included them, the provisions of the preceding
sentence shall not apply, for a period of not more than two years from the date
of such acquisition, to the extent that such securities included in such estate
do not exceed 25% of such voting securities or 25% of any such class of
security. Promptly after the dates of any such default upon any of the Debt
Securities and annually in each succeeding year that any of such Debt
Securities remains in default, the Trustee shall make a check of its holdings
of such securities in any of the above-mentioned capacities as of such dates.
If the Company fails to make payment in full of the principal of (or premium,
if any) or interest on any of the Debt Securities when and as the same becomes
due and payable, and such failure continues for 30 days thereafter, the Trustee
shall make a prompt check of its holdings of such securities in any of the
above-mentioned capacities as of the date of the expiration of such 30-day
period, and after such date, notwithstanding the foregoing provisions of this
paragraph, all such securities so held by the Trustee, with sole or joint
control over such securities vested in it, shall, but only so long as such
failure shall continue, be considered as though beneficially owned by the
Trustee for the purposes of paragraphs (6), (7) and (8) of this subsection; or
(10) except under the circumstances described in
paragraphs (1), (3), (4), (5) or (6) of this subsection, the Trustee shall be
or shall become a creditor of the Company.
For purposes of paragraph (1) of this subsection, the term
"series of securities" or "series" means a series, class or group of securities
issuable under an indenture pursuant to whose terms holders of one such series
may vote to direct the indenture trustee, or otherwise take action pursuant to
a vote of such holders, separately from holders of another such series;
provided that "series of securities" or "series" shall not include any series
of securities issuable under an indenture if all such series rank equally and
are wholly unsecured.
The specification of percentages in paragraphs (5) to (9),
inclusive of this subsection shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of paragraph (3) or (7) of this subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (ii) an obligation shall be deemed
to be "in default" when a default in payment of principal shall have continued
for 30 days or more and shall not have been cured; and (iii) the Trustee shall
not be deemed to be the owner or holder of (A) any security which it holds as
collateral security, as trustee or otherwise, for an obligation which is not in
default as defined in clause (ii) above, or (B) any security which it holds as
collateral security under this Indenture, irrespective of any default
hereunder, or (C) any security which it holds as agent for collection, or as
custodian, escrow agent or depositary, or in any similar representative
capacity.
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Except in the case of a default in the payment of the
principal of or interest on any Debt Security, or in the payment of any sinking
or purchase fund installment, the Trustee shall not be required to resign as
provided by this subsection if the Trustee shall have sustained the burden of
proving, on application to the Commission and after opportunity for hearing
thereon, that
(i) the default under the Indenture may be cured
or waived during a reasonable period and under the procedures
described in such application, and
(ii) a stay of the Trustee's duty to resign will
not be inconsistent with the interests of Holders of the Debt
Securities. The filing of such an application shall automatically
stay the performance of the duty to resign until the Commission orders
otherwise.
Any resignation of the Trustee shall become effective only
upon the appointment of a successor Trustee and such successor's acceptance of
such an appointment.
(d) For the purposes of this Section:
(1) The term "underwriter" when used with
reference to the Company means every person who, within one year prior to the
time as of which the determination is made, was an underwriter of any security
of the Company outstanding at the time of such determination.
(2) The term "director" means any director of a
corporation, or any individual performing similar functions with respect to any
organization, whether incorporated or unincorporated.
(3) The term "person" means an individual, a
corporation, a partnership, an association, a joint stock company, a trust, an
estate, an unincorporated organization, or a government or political
subdivision thereof. As used in this paragraph, the term "trust" shall include
only a trust where the interest or interests of the beneficiary or
beneficiaries are evidenced by a security.
(4) The term "voting security" means any security
presently entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or pursuant
to any trust, agreement or arrangements whereby a trustee or trustees or agent
or agents for the owner or holder of such security are presently entitled to
vote in the direction or management of' the affairs of a person.
(5) The term "Company" means any obligor upon the
Debt Securities of any series.
(6) The term "executive officer" means the
president, every vice president, every trust officer, the cashier, the
secretary, and the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization,
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whether incorporated or unincorporated, but shall not include the chairman of
the board of directors.
(e) The percentages of voting securities and other
securities specified in this Section shall be calculated in accordance with the
following provisions:
(1) A specified percentage of the voting
securities of the Trustee, the Company or any other person referred to in this
Section (each of whom is referred to as a "person" in this paragraph) means
such amount of the outstanding voting securities of such person as entitles the
holder or holders thereof to cast such specified percentage of the aggregate
votes which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(2) A specified percentage of a class of
securities of a person means such percentage of the aggregate amount of
securities of the class outstanding.
(3) The term "amount" when used with
regard to securities means the principal amount if relating to evidences of
indebtedness, the number of shares if relating to capital shares, and the
number of units if relating to any other kind of security.
(4) The term "outstanding" means issued
and not held by or for the account of the issuer. The following securities
shall not be deemed outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not in
default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as security
for an obligation of the issuer not in default as to principal or
interest or otherwise; and
(iv) securities held in escrow if placed in escrow by the
issuer thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(5) A security shall be deemed to be of the same
class as another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; provided, however, that,
in the case of secured evidences of indebtedness, all of which are issued under
a single indenture, differences in the interest rates or maturity dates of
various series thereof shall not be deemed sufficient to constitute such series
different classes; and provided, further, that in the case of unsecured
evidences of indebtedness, differences in the interest rates or maturity dates
thereof shall not be deemed sufficient to constitute them securities of
different classes, whether or not they are issued under a single indenture.
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Section 310 of the Trust Indenture Act and
Section 608 hereof and shall be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $5,000,000, subject
to supervision or examination by Federal or State authority and having its
Corporate Trust Office in the United States of America. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. 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 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time with respect to
the Debt Securities of one or more series by giving written notice thereof to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent Jurisdiction for the appointment of a successor Trustee with respect
to the Debt Securities of such series.
(c) The Trustee may be removed at any time with respect
to the Debt Securities of any series and a successor Trustee may be appointed
by Act of the Holders of a majority in principal amount of the Outstanding Debt
Securities of such-series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
608(a) with respect to the Debt Securities of any series after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a
Debt Security of such series for at lest six months, or
(2) the Trustee shall cease to be eligible under
Section 609 with respect to the Debt Securities of any series and shall fail to
resign after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any
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public officer shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Debt Securities, or (ii) subject to Section 514,
any Holder who has been a bona fide Holder of a Debt Security of any series for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent Jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee for the Debt Securities of
such series.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Debt Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Debt Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Debt Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Debt Securities of any particular
series) and shall comply with the applicable requirements of Section 611. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Debt
Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Debt Securities of such series delivered
to the Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the successor
Trustee with respect to the Debt Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Debt Securities of any series shall have been so
appointed by the Company or the Holders of such series and accepted appointment
in the manner hereinafter provided, any Holder who has been a bona fide Holder
of a Debt Security of such series for at least six months may, subject to
Section 514, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Debt Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Debt Securities of any series
and each appointment of a successor Trustee with respect to the Debt Securities
of any series in the manner and to the extent provided in Section 105 to the
Holders of Debt Securities of such series. Each notice shall include the name
of the successor Trustee with respect to the Debt Securities of such series and
the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In the case of an appointment hereunder of a
successor Trustee with respect to all Debt Securities, each such successor
Trustee so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to such successor
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Trustee all property and money held by such retiring Trustee hereunder, subject
nevertheless to its lien, if any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Debt Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee with
respect to the Debt Securities of one or more series shall execute and deliver
an indenture supplement hereto wherein each successor Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Debt Securities of that or those series of which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Debt Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in any such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any other trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of any such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Debt Securities
of that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any Debt
Securities shall have been authenticated, but not
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delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Debt Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Debt Securities. In case
any Debt Securities shall not have been authenticated by such predecessor
Trustee, any such successor Trustee may authenticate and deliver such Debt
Securities, in either its own name or that of its predecessor Trustee, with the
full force and effect which this Indenture provides for the certificate of
authentication of the Trustee.
SECTION 613. Preferential Collection of Claims Against Company.
(a) Subject to subsection (b) of this Section, if the
Trustee shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as defined in
subsection (c) of this Section, or subsequent to such a default, then, unless
and until such default shall be cured, the Trustee shall set apart and hold in
a special account for the benefit of the Trustee individually, the Holders of
the Debt Securities and of the Coupons, if any, and the holders of other
indenture securities (as defined in subsection (c) of this Section):
(1) an amount equal to any and all reductions in
the amount due and owing upon any claim as such creditor in respect of
principal and interest, effected after the beginning of such three-month period
and valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any property described
in paragraph (2) of this subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a voluntary or involuntary
case had been commenced in respect of the Company under the Federal bankruptcy
laws, as now or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or other similar law upon the date of such default; and
(2) all property received by the Trustee in
respect of any claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning of such
three-month period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and its
other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments
made on account of any such claim by any Person (other than the Company) who is
liable thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law;
(B) to realize, for its own account, upon any
property held by it as security for any such claim, if such property was so
held prior to the beginning of such three-month period;
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(C) to realize, for its own account, but only to
the extent of the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the beginning of
such three-month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain the
burden of proving that at the time such property was so received the Trustee
had no reasonable cause to believe that a default, as defined in subsection (c)
of this Section, would occur within three months; or
(D) to receive payment on any claim referred to
in paragraph (B) or (C) against the release of any property held as security
for such claim as provided in paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three-month period for property held as
security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for the purpose of repaying or
refunding any pre-existing claim of the Trustee as such creditor, such claim
shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Holders and the holders of other indenture
securities in such manner that the Trustee, the Holders and the holders of
other indenture securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law, the
same percentage of their respective claims, figured before crediting to the
claim of the Trustee anything on account of the receipt by it from the Company
of the funds and property in such special account and before crediting to the
respective claims of the Trustee and the Holders and the holders of other
indenture securities dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law, but
after crediting thereon receipts on account of the indebtedness represented by
their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal bankruptcy laws, as now
or hereafter constituted, or any other applicable Federal or State bankruptcy,
insolvency or other similar law, whether such distribution is made in cash,
securities, or other property, but shall not include any such distribution with
respect to the secured portion, if any, of such claim. The court in which such
bankruptcy, receivership or proceedings for reorganization is pending shall
have jurisdiction (i) to apportion among the Trustee and the Holders and the
holders of other indenture securities, in accordance with the provisions of
this paragraph, the funds and property held in such special account and
proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part,
to give to the provisions of this paragraph due consideration in determining
the fairness of the distributions to be made to
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the Trustee and the Holders and the holders of other indenture securities with
respect to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claim, or otherwise to apply the provisions of this paragraph as a
mathematical formula. Any Trustee which has resigned or been removed after the
beginning of such three-month period shall be subject to the provisions of this
subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such three-month
period, it shall be subject to the provisions of this subsection if and only if
the following conditions exist:
(i) the receipt of property or reduction of
claim, which would have given rise to the obligation to account, if such
Trustee had continued as Trustee, occurred after the beginning of such
three-month period; and
(ii) such receipt of property or reduction of
claim occurred within three months after such resignation or removal.
(b) There shall be excluded from the operation of
subsection (a) of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities
issued under any indenture, or any security or securities having a maturity of
one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or
bankruptcy court of competent jurisdiction or by this Indenture, for the
purpose of preserving any property which shall at any time be subject to the
lien of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the circumstances
surrounding the making thereof is given to the Holders at the time and in the
manner provided in this Indenture;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary, or other
similar capacity;
(4) an indebtedness created as a result of
services rendered or premises rented; or an indebtedness created as a result of
goods or securities sold in a cash transaction as defined in subsection (c) of
this Section;
(5) the ownership of stock or of other securities
of a corporation organized under the provisions of Section 25(a) of the Federal
Reserve Act, as amended, which is directly or indirectly a creditor of the
Company; and
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or obligations which
fall within the classification of self-liquidating paper as defined in
subsection (c) of this Section.
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(c) For the purposes of this Section only:
(1) The term "default" means any failure to make
payment in full of the principal of or interest on any of the Debt Securities
or upon the other indenture securities when and as such principal or interest
becomes due and payable.
(2) The term "other indenture securities" means
securities upon which the Company is an obligor outstanding under any other
indenture (i) under which the Trustee is also trustee, (ii) which contains
provisions substantially similar to the provisions of this Section, and (iii)
under which a default exists at the time of the apportionment of the funds and
property held in such special account.
(3) The term "cash transaction" means any
transaction in which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks and payable upon demand.
(4) The term "self-liquidating paper" means any
draft, bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing the
purchase, processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or obligation.
(5) The term "Company" means any obligor upon the
Debt Securities.
SECTION 614. Appointment of Authenticating Agent.
As long as any Debt Securities of a series remain Outstanding
there may be an authenticating agent (the "Authenticating Agent") selected and
appointed, for such period as the Trustee shall elect, by the Trustee for such
series of Debt Securities to act as its agent on its behalf and subject to its
direction in connection with the authentication and delivery of such series of
Debt Securities for which it is serving as Trustee. Debt Securities of each
such series authenticated by such Authenticating Agent shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
as if authenticated by such Trustee. Wherever reference is made in this
Indenture to the authentication and delivery of Debt Securities of any series
by the Trustee for such series or to the Trustee's Certificate of
Authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee for such series by an Authenticating Agent
for such series and a Certificate of Authentication executed on behalf of such
Trustee by such Authenticating Agent except that only the Trustee may
authenticate Debt Securities upon original issuance and pursuant to Section 306
hereof. Such Authenticating Agent shall at all times be a corporation
organized and doing business under the laws of the United States of America or
of any State, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $5,000,000 and subject to
supervision or examination by federal or State authority. If such
Authenticating Agent
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publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for purposes of
this Section the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section. Any corporation into which any
Authenticating Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which any Authenticating Agent, shall be a party, or any
corporation succeeding to the corporate agency business of any Authenticating
Agent, shall continue to be the Authenticating Agent with respect to all series
of Debt Securities for which it served as Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
for such series or such Authenticating Agent. Any Authenticating Agent may at
any time and if it shall cease to be eligible shall resign, by giving written
notice of resignation to the applicable Trustee and to the Company.
Upon receiving such a notice of resignation or upon such a
termination or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 614 with respect to
one or more of all series of Debt Securities, the Trustee for such series shall
upon Company Request appoint a successor Authenticating Agent, and the Company
shall provide notice of such appointment to all Holders of Debt Securities of
such series in the manner and to the extent provided in Section 105. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as
Authenticating Agent herein. The Company agrees to pay to the Authenticating
Agent for such series from time to time reasonable compensation for its
services. The Authenticating Agent for the Debt Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee for such series.
If an appointment with respect to one or more series is made
pursuant to this Section, the Debt Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Debt Securities of the series designated
therein referred to in the within mentioned Indenture.
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Chemical Bank,
As Trustee
By_________________________
As Authenticating Agent
By_________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the
Trustee with respect to Registered Securities of each series for which it acts
as Trustee:
(a) semi-annually on a date not more than 15 days after
each Regular Record Date with respect to an Interest Payment Date, if any, for
the Registered Securities of such series (or on semi-annual dates in each year
to be determined pursuant to Section 301 if the Registered Securities of such
series do not bear interest), a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Registered Holders as of
the date 15 days next preceding each such Regular Record Date (or such
semi-annual dates, as the case may be); and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to
the time such list is furnished.
provided, however, that if and so long as the Trustee shall be the Security
Registrar for such series, no such list need be furnished.
The Company shall also be required to furnish to the Trustee
at all such times set forth above all information in the possession or control
of the Company or any of its Paying Agents other than the Trustee as to the
names and addresses of the Holders of Bearer Securities of all series;
provided, however, that the Company shall have no obligation to investigate any
matter relating to any Holders of Bearer Securities of any series.
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SECTION 702. Preservation of Information; Communication To Holders.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, all information as to the names and addresses of
Holders contained in the most recent list furnished to the Trustee as provided
in Section 701 or received by it in the capacity of Paying Agent (if so acting)
hereunder.
(b) If three or more Holders (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Debt Security for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Debt Securities of a particular series (in which case the applicants must
hold Debt Securities of such series) or with all Holders of Debt Securities
with respect to their rights under this Indenture or under the Debt Securities
and is accompanied by a copy of the form of proxy or other communication which
such applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application, at its election, either
(i) afford such applicants access to the
information preserved at the time by the Trustee in accordance with Section
702(a), or
(ii) inform such applicants as to the approximate
number of Holders of Debt Securities of such series or of all Debt Securities
as the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 702(a), and as
to the approximate cost of mailing to such Holders the form of proxy or other
communication, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon written request of such
applicants, mail to the Holders of Debt Securities of such series or all
Holders, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
702(a), a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of
the material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders of Debt Securities of such series or all Holders as
the case may be, or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
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(c) Every Holder of Debt Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Holders in
accordance with Section 702(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing of any material pursuant to a request made under Section
702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing
with the year 1993, the Trustee shall transmit to all Holders of Debt
Securities of any series with respect to which it acts as Trustee, in the
manner hereinafter provided in this Section 703, a brief report dated as of
such May 15 with respect to:
(1) any change to its eligibility under Section
609 and its qualifications under Section 608, or in lieu thereof, if to the
best of its knowledge it has continued to be eligible and qualified under said
Sections, a written statement-to such effect;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of Section 608(c) hereof;
(3) any change to the character and amount of any
advances made by the Trustee (as such) which remain unpaid on the date of such
report, and for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Debt Securities of such series, on any property or
funds held or collected by it as Trustee, if such advances so remaining unpaid
aggregate not more than 1/2 of 1% of the principal amount of the Outstanding
Debt Securities of such series on the date of such report;
(4) any change to the amount, interest rate and
maturity date of all other indebtedness owing by the Company (or any other
obligor on the Debt Securities of such series) to the Trustee in its individual
capacity, on the date of such report, with a brief description of any property
held as collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in Section 613(b) (2),
(3), (4) or (6);
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of
property subject to the lien of the Indenture (and the consideration therefor,
if any) which it has not previously reported;
(7) any additional issue of Debt Securities which
the Trustee has not previously reported; and
(8) any action taken by the Trustee in the
performance of its duties hereunder which it has not previously reported and
which in its opinion materially affects the
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Debt Securities of such series, except action in respect of a default, notice
of which has been or is to be withheld by the Trustee in accordance with
Section 602.
(b) The Trustee shall transmit by mail to all Holders of
Debt Securities of any series (whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
702(a)) for which it acts as the Trustee, as hereinafter provided, a brief
report with respect to the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) since the date of the last report transmitted
pursuant to subsection (a) of this Section (or if no such report has yet been
so transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that
of the Debt Securities of such series, on property or funds held or collected
by it as Trustee, and which it has not previously reported pursuant to this
subsection, if such advances remaining unpaid at any time aggregate more than
10% of the principal amount of the Debt Securities of such series Outstanding
at such time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section 703 shall be
transmitted by mail:
(1) to all Registered Holders, as the names and
addresses of the Registered Holders appear in the Security Register;
(2) to such Holders of Debt Securities of any
series as have, within two years preceding such transmission, filed their names
and addresses with the Trustee for such series for that purpose; and
(3) except in the cases of reports pursuant to
subsection (b) of this Section 703, to all Holders of Debt Securities of any
series whose name and address appear in the information preserved at the time
by the Trustee, in accordance with Section 702(a).
(d) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Debt Securities of such series are listed, with the Commission and
also with the Company. The Company will promptly notify the Trustee when any
series of Debt Securities are listed on any stock exchange.
SECTION 704. 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
Securities Exchange Act of 1934, as amended; or, if the Company is not required
to file information, documents or reports pursuant to either of said Sections,
then it will file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the
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Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Securities Exchange
Act of 1934, as amended, in respect of a security listed and registered on a
national securities exchange as may be required from time to time in such rules
and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this Indenture
as may be required from time to time by such rules and regulations; and
(3) transmit to all Holders of Debt Securities,
in the manner and to the extent provided in Section 703, within 30 days after
the filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required to be transmitted to
Holders by rules and regulations prescribed from time to time by the
Commission.
ARTICLE EIGHT
CONCERNING THE HOLDERS
SECTION 801. Acts of Holders.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent or
proxy duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee, and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Whenever in this
Indenture it is provided that the Holders of a specified percentage in
aggregate principal amount of the Outstanding Debt Securities of any series may
take any Act, the fact that the Holders of such specified percentage have
joined therein may be evidenced (a) by the instrument or instruments executed
by Holders in person or by agent or proxy appointed in writing, or (b) by the
record of Holders voting in favor thereof at any meeting of such Holders duly
called and held in accordance with the provisions of Article Nine, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of Holders.
SECTION 802. Proof of Ownership; Proof of Execution of Instruments
by Holders.
The ownership of Registered Securities of any series shall be
proved by the Security Register for such series or by a certificate of the
Security Registrar for such series.
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The ownership of Bearer Securities shall be proved by
production of such Bearer Securities or by a certificate executed by any bank
or trust company, which certificate shall be dated and shall state on the date
thereof a Bearer Security bearing a specified identifying number or other mark
was deposited with or exhibited to the person executing such certificate by the
person named in such certificate, or by any other proof of possession
reasonably satisfactory to the Trustee. The holding by the person named in any
such certificate of any Bearer Security specified therein shall be presumed to
continue for a period of one year unless at the time of determination of such
holding (1) another certificate bearing a later date issued in respect of the
same Bearer Security shall be produced, (2) such Bearer Security shall be
produced by some other person, (3) such Bearer Security shall have been
registered on the Security Register, if, pursuant to Section 301, such Bearer
Security can be so registered, or (4) such Bearer Security shall have been
cancelled or paid.
Subject to the provisions of Section 601, 603 and 905, proof
of the execution of a writing appointing an agent or proxy and of the execution
of any instrument by a Holder or his agency proxy shall be sufficient and
conclusive in favor of the Trustee and the Company if made in the following
manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public or other
officer authorized to take acknowledgement of deeds, that the person executing
such instrument acknowledged to him the execution thereof, or by an affidavit
of a witness to such execution sworn to before any such notary or other such
officer. Where such execution is by an officer of a corporation or association
or a member of a partnership on behalf of such corporation, association or
partnership, as the case may be, or by any other person acting in a
representative capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The record of any Holders' meeting shall be proved in the
manner provided in Section 906.
The Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section so long as the
request is a reasonable one.
SECTION 803. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving payment of the principal of (and premium, if any) and (subject to
Section 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. The Company, the Trustee, and any
agent of the Company or the Trustee may treat the Holder of any Bearer Security
or of any Coupon as the absolute owner of such Bearer Security or Coupon for
the purposes of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Bearer Security or Coupon be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary. All payments made to
any Holder or upon his order, shall be valid,
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and, to the extent of the sum or sums paid, effectual to satisfy and discharge
the liability for moneys payable upon such Debt Security or Coupon.
SECTION 804. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 801, of the taking of any Act by the Holders of
the percentage in aggregate principal amount of the Outstanding Debt Securities
specified in this Indenture in connection with such Act, any Holder of a Debt
Security the number, letter or other distinguishing symbol of which is shown by
the evidence to be included in the Debt Securities the Holders of which have
consented to such Act may, by filing written notice with the Trustee at the
Corporate Trust Office and upon proof of ownership as provided in Section 802,
revoke such Act so far as it concerns such Debt Security. Except as aforesaid,
any such Act taken by the Holder of any Debt Security shall be conclusive and
binding upon such Holder and upon all future Holders of such Debt Security and
all past, present and future Holders of Coupons, if any, appertaining thereto
and of any Debt Securities and Coupons issued on transfer or in lieu thereof or
in exchange or substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon such Debt Security or Coupons or such
other Debt Securities or Coupons.
ARTICLE NINE
HOLDER'S MEETINGS
SECTION 901. Purposes of Meetings.
A meeting of Holders of any or all series may be called at any
time and from time to time pursuant to the provisions of this Article Nine for
any of the following purposes:
(1) to give any notice to the Company or to the Trustee
for such series, or to give any directions to the Trustee for such series, or
to consent to the waiving of any default hereunder and its consequences, or to
take any other action authorized to be taken by Holders pursuant to any of the
provisions of Article Five;
(2) to remove the Trustee for such series and appoint a
successor Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section 1102; or
(4) to take any other action authorized to be taken by or
on behalf of the Holders of any specified aggregate principal amount of the
Outstanding Debt Securities of any one or more or all series, as the case may
be, under any other provision of this Indenture or under applicable law.
SECTION 902. Call of Meetings by Trustee.
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The Trustee for any series may at any time call a meeting of
Holders of such series to take any action specified in Section 901, to be held
at such time or times and at such place or places as the Trustee for such
series shall determine. Notice of every meeting of the Holders of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given to Holders of such
series in the manner and to the extent provided in Section 105. Such notice
shall be given not less than 20 days nor more than 90 days prior to the date
fixed for the meeting.
SECTION 903. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 25% in aggregate principal amount of the
Outstanding Debt Securities of a series or of all series, as the case may be,
shall have requested the Trustee for such series to call a meeting of Holders
of any or all such series by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
given the notice of such meeting within 20 days after the receipt of such
request, then the Company or such Holders may determine the time or times and
the place or places for such meetings and may call such meetings to take any
action authorized in Section 901, by giving notice thereof as provided in
Section 902.
SECTION 904. Qualifications for Voting.
To be entitled to vote at any meeting of Holders a Person
shall be (a) a Holder of a Debt Security of the series with respect to which
such meeting is being held or (b) a Person appointed by an instrument in
writing as agent or proxy by such Holder. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders shall be the
Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee for the series with respect to which such
meeting is being held and its counsel and any representatives of the Company
and its counsel.
SECTION 905. Regulations.
Notwithstanding any other provisions of this Indenture, the
Trustee for any series may make such reasonable regulations as it may deem
advisable for any meeting of Holders of such series, in regard to proof of the
holding of Debt Securities of such series and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of such series as provided in Section 903, in which
case the Company or the Holders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by a majority vote of the
meeting.
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Subject to the provisos in the definition of "Outstanding," at
any meeting each Holder of a Debt Security of the series with respect to which
such meeting is being held or proxy therefor shall be entitled to one vote for
each $1,000 principal amount (or such other amount as shall be specified as
contemplated by Section 301) of Debt Securities of such series held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Debt Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote other than by virtue of Outstanding
Debt Securities of such series held by him or instruments in writing duly
designating him as the person to vote on behalf of Holders of Debt Securities
of such series. Any meeting of Holders with respect to which a meeting was
duly called pursuant to the provisions of Section 902 or 903 may be adjourned
from time to time by a majority of such Holders present and the meeting may be
held as so adjourned without further notice.
SECTION 906. Voting.
The vote upon any resolution submitted to any meeting of
Holders with respect to which such meeting is being held shall be by written
ballots on which shall be subscribed the signatures of such Holders or of their
representatives by proxy and the serial number or numbers of the Debt
Securities held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Holders shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was transmitted as provided
in Section 902. The record shall show the serial numbers of the Debt
Securities voting in favor of or against any resolution. The record shall be
signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one of the duplicates shall be delivered to the Company and
the other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 907. No Delay of Rights by Meeting.
Nothing contained in this Article Nine shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of Holders
or any rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to any Holder under any of the provisions of this
Indenture of the Debt Securities of any series.
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
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SECTION 1001. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation 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 corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by such
consolidated or into which the Company is merged or the Person which acquires
the conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a corporation organized and
existing under the laws of the United States or any State 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
on all the Debt Securities and the performance 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,
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) the corporation formed by such consolidation or into
which the Company shall have been merged or the Person to which such sale,
lease or other disposition shall have been made shall be a banking institution
or a bank holding company subject to Federal or State authority; and
(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 supplement indenture is
required in connection with such transaction, such supplemental indenture
comply with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 1002. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other corporation, or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 1001, the successor corporation 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 corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Debt Securities.
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ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 1101. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another
corporation to the Company and the assumption by such successor of the
covenants of the Company herein and in the Debt Securities contained; or
(2) to add to the covenants of the Company, for
the benefit of the Holders of all or any series of Debt Securities and the
Coupons, if any, appertaining thereto (and if such covenants are to be for the
benefit of less than all series, stating that such covenants are expressly
being included solely for the benefit of such series), or to surrender any
right or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and
if such Events of Default are to be applicable to less than all series, stating
that such Events of Default are expressly being included solely to be
applicable to such series); or
(4) to add to or change any of the provisions of
this Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Debt Securities of any series in bearer form, registrable or not
registrable, and with or without Coupons, to permit Bearer Securities to be
issued in exchange for Registered Securities to the extent permitted by
applicable law, to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit the issuance of Debt
Securities of any series in uncertificated form, provided that any such action
shall not adversely affect the interests of the Holders of Debt Securities of
any series or any related Coupons in any material respect; or
(5) to change or eliminate any of the provisions
of this Indenture, provided that any such change or elimination shall become
effective only when there is no Outstanding Debt Security or Coupon of any
series created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision and as to which such supplemental
indenture would apply; or
(6) to secure the Debt Securities; or
(7) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Debt Securities pursuant to Articles
Four or Fifteen, provided that any such action shall not adversely affect the
interests of the Holders of Debt Securities of such series or any other series
of Debt Securities or any related Coupons in any material respect; or
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(8) to establish the form or terms of Debt
Securities and Coupons, if any, of any series as permitted by Sections 201 and
301; or
(9) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to one or more series
of Debt Securities and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611; or
(10) to make any modifications, amendments or
supplements to any provision herein which modifications, amendments or
supplements are required pursuant to any amendment of the Trust Indenture Act
of 1939 enacted, or any Rules promulgated thereunder, after the date hereof; or
(11) to cure any ambiguity, to correct or
supplement any provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with respect to matters
or questions arising under this Indenture which shall not be inconsistent with
any provision of this Indenture, provided such other provisions shall not
adversely affect the interests of the Holders of Outstanding Debt Securities or
Coupons, if any, of any series created prior to the execution of such
supplemental indenture in any material respect.
SECTION 1102. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture voting separately, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture of such
Debt Securities; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Debt Security of each
such series affected thereby,
(1) change the Stated Maturity of the principal
of, or installment of interest, if any, on, any Debt Security, or reduce the
principal amount thereof or the interest thereon or any premium payable upon
redemption thereof, or change the Stated Maturity of or reduce the amount of
any payment to be made with respect to any Coupon or change the Currency or
Currencies in which the principal of (and premium, if any) or interest on such
Debt Security is denominated or payable, or reduce the amount of the principal
of a Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or adversely
affect the right of repayment or repurchase, if any, at the option of the
Holder, or reduce the amount of, or postpone the date fixed for, any payment
under any sinking fund or analogous provisions for any Debt Security, or impair
the right to institute suit for the enforcement of any payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or limit the obligation of the Company to maintain a paying
agency outside the United States for payment on Bearer Securities
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as provided in Section 1203, or limit the obligation of the Company to redeem
an Affected Security as provided in Section 1302(b); or
(2) reduce the percentage in principal amount of
the Outstanding Debt Securities of any series, the consent of whose Holders is
required for any supplemental indenture, or the consent of whose Holders is
required for any waiver of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences provided for in this
Indenture; or
(3) modify any of the provisions of this Section,
Section 513 or Section 1211, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Debt Security
affected thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the references to
"the Trustee" and concomitant changes in this Section and Section 1211, or the
deletion of this proviso, in accordance with the requirements of Sections 611
and 1101(7). It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof. A
supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture with respect to one or more particular series of
Debt Securities and Coupons, if any, or which modifies the rights of the
Holders of Debt Securities and Coupons of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Debt Securities and Coupons, if any, of any
other series.
SECTION 1103. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) 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
adversely affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise in a material way.
SECTION 1104. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Debt Securities and Coupons theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 1105. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trustee Indenture Act as then in
effect.
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SECTION 1106. Reference in Debt Securities to Supplemental
Indentures.
Debt Securities and Coupons, if any, of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Debt Securities
and Coupons of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Debt Securities and Coupons of such series.
SECTION 1107. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the
appropriate Trustee of any supplemental indenture pursuant to Section 1102, the
Company shall transmit, in the manner and to the extent provided in Section
105, to all Holders of any series of the Debt Securities affected thereby, a
notice setting forth in general terms the substance of such supplemental
indenture.
ARTICLE TWELVE
COVENANTS
SECTION 1201. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Debt Securities and Coupons, if any, that it will duly and punctually
pay the principal of (and premium, if any) and interest on the Debt Securities
in accordance with the terms of the Debt Securities, the Coupons and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Debt 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. The interest, if any, due in respect of any temporary
Global Note or permanent Global Note, together with any additional amounts
payable in respect thereof, as provided in the terms and conditions of such
Debt Security, shall be payable, subject to the conditions set forth in Section
1202, only upon presentation of such Debt Security to the Trustee for notation
thereon of the payment of such interest.
SECTION 1202. Payment of Additional Amounts.
If specified pursuant to Section 301, the provisions of this
Section 1202 shall be applicable to Securities of any series.
The Company will, subject to the exceptions and limitations
set forth below, pay to the Holder of a Bearer Security or Coupon who is a
United States Alien such additional amounts as may be necessary so that every
net payment on such Bearer Security or Coupon, after withholding by the Company
or the designated paying agents for or on account of any
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present or future tax, assessment of other governmental charge imposed upon or
as a result of such payment by the United States (or any political subdivision
or taxing authority thereof or therein), will not be less than the amount
provided in such Bearer Security or Coupon to be then due and payable.
However, the Company will not be required to make any payment of additional
amounts for or on account of:
(a) any tax, assessment or other governmental
charge that would not have been so imposed but for (i) the existence of any
present or former connection between such Holder (or such fiduciary, settlor,
or beneficiary of, or a person holding a power over, such Holder, if such
holder is an estate or a trust, or a member or shareholder of such Holder, if
such Holder is a partnership or corporation) and the United States, including,
without limitation, such Holder (or such fiduciary, settlor, beneficiary,
person holding power, member or shareholder) being or having been a citizen or
resident thereof or being or having been engaged in trade or business or
present therein, or having or having had a permanent establishment therein, or
(ii) such Holder's past or present status as a personal holding company,
foreign personal holding company or private foundation or other tax-exempt
organization with respect to the United States or a corporation that
accumulates earnings to avoid United States Federal income tax;
(b) any estate, inheritance, gift, sales,
transfer or personal property tax or any similar tax, assessment or other
governmental charge;
(c) any tax, assessment or other governmental
charge that would not have been imposed but for the presentation by the Holder
of a Debt Security or Coupon for payment more than 15 days after the date on
which such payment became due and payable or the date on which payment thereof
was duly provided for, whichever occurs later;
(d) any tax, assessment or other governmental
charge that is payable otherwise than by withholding from a payment on a Debt
Security or Coupon;
(e) any tax, assessment or other governmental
charge required to be withheld by any Paying Agent from a payment on a Debt
Security or Coupon, if such payment can be made without such withholding by at
least one other Paying Agent;
(f) any tax, assessment or other governmental
charge that would not have been imposed but for a failure to comply with
applicable certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity or connection with
the United States of the Holder or beneficial owner of a Debt Security or
Coupon if such compliance is required by statute or regulation of the United
States as a precondition to relief or exemption from such tax, assessment or
other governmental charge (including backup withholding);
(g) any tax, assessment or other governmental
charge imposed on a Holder that actually or constructively owns 10 percent or
more of the combined voting power of all classes of stock of the Company
entitled to vote or that is a controlled foreign corporation related to the
Company through stock ownership;
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(h) any tax, assessment or other governmental
charge imposed with respect to any Registered Security by reason of failure of
the Holder to fulfill the statement requirement of Section 871(h) or Section
881(c) of the Code or regulations thereunder or any successor provision; or
(i) any combination of items (a), (b), (c), (d),
(e), (f), (g) or (h) hereof;
nor shall additional amounts be paid with respect to a payment on a Debt
Security or Coupon to a Holder that is a fiduciary or partnership or other than
the sole beneficial owner of such payment to the extent such payment would be
required by the laws of the United States (or any political subdivision
thereof) to be included in the income for tax purposes of a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner that would not have been entitled to the additional amounts
had such beneficiary, settlor, member or beneficial owner been the Holder of
such Debt Security or Coupon.
Whenever in this Indenture there is mentioned, in any
context, the payment of the principal of (or premium, if any) or interest on
any Debt Security or payment with respect to any Coupon of any series, such
mention shall be deemed to include mention of the payment of additional amounts
provided for in the terms of such Debt Securities and this Section to the
extent that, in such context, additional amounts are, were or would be payable
in respect thereof pursuant to the provisions of this Section 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.
SECTION 1203. Maintenance of Office or Agency.
If Debt Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for such series
an office or agency where Debt Securities of that series may be presented or
surrendered for payment, where Debt Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Debt Securities of that series
and this Indenture may be served. If Debt Securities of a series are issuable
as Bearer Securities, the Company will maintain (A) in The City of London, 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, where Debt Securities
of that series may be surrendered for exchange, where notices and demands to or
upon the Company in respect of the Debt Securities of that series and this
Indenture may be served and where Bearer Securities of that series and related
coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the Untied States, an office or agency where Debt
Securities of that series and related coupons may be presented and surrendered
for payment (including payment of any additional amounts payable on Securities
of that series pursuant to Section 1202); provided, however, that if the Debt
Securities of that series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the
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Company will maintain a Payment Agent for the Debt Securities of that series in
London, Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Debt Securities of that series are
listed on such exchange, and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the United
States an office or agency where any Registered Securities of that series may
be surrendered for registration of transfer, where Debt Securities of that
series may be surrendered for registration of transfer, where Debt Securities
of that series may be surrendered for exchange and where notices and demands to
or upon the Company in respect of the Debt Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency 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 (in the case of Registered
Securities) and at the principal London office of the Trustee (in the case of
Bearer Securities), and the Company hereby appoints the Trustee as its agent to
receive all presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; provided,
however, that, if the Debt Securities of a series are denominated and payable
in Dollars, payment of principal of and any premium and interest on any Bearer
Security (including any additional amounts payable on Securities of such series
pursuant to Section 1202) shall be made at the office of the Company's Paying
Agent in The City of London if (but only if) payment in Dollars of the full
amount of such principal, premium, interest or additional amounts, as the case
may be, at all offices or agencies outside the United States maintained for the
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions. The
Company may also from time to time designate different or additional offices or
agencies to be maintained for such purposes (in or outside of such Place of
Payment), and may from time to time rescind any such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligations described in the preceding paragraph. The Company
will give prompt written notice to the Trustee of any such additional
designation or rescission of designation and any change in the location of any
such different or additional office or agency.
SECTION 1204. Money for Debt Securities; Payments To Be Held in
Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Debt Securities and Coupons, if any, it will, on
or before each such due date of the principal of (and premium, if any) or
interest on any of the Debt Securities of such series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with
respect to any series of Debt Securities and Coupons, it will, by or on each
due date of the principal (and
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premium, if any) or interest on any Debt Securities of such series, deposit
with any such Paying Agent a sum sufficient to pay the principal (and premium,
if any) or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled thereto, and (unless any such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent with respect to any
series of Debt Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of
the principal of (and premium, if any) or interest on Debt Securities of such
series in trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Debt Securities of such series) in the
making of any payment of principal (and premium, if any) or interest on the
Debt securities of such series; and
(3) at any time during the continuance of any
such default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Debt Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company upon Company Request,
or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Debt Security or Coupon shall thereafter, as an unsecured
general creditor look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment may at the expense of the Company cause to be
transmitted in the manner and to the extent provided by Section 105, notice
that such money remains unclaimed and that after a date specified therein,
which shall not be less than 30 days from the date of such notification any
unclaimed balance of such money then remaining will be repaid to the Company.
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SECTION 1205. Corporate Existence.
Subject to Article Ten, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such existence,
right or franchise if the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company.
SECTION 1206. Purchase of Debt Securities by Company.
If the Debt Securities of a series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, the Company will not purchase any Debt Securities of
that series by private treaty at a price (exclusive of expenses and accrued
interest) which exceeds 120% of the mean of the nominal quotations of the Debt
Securities of that series as shown in The Stock Exchange Daily Official List
for the last trading day preceding the date of purchase.
SECTION 1207. Limitation on Disposition of Voting Stock of, and
Merger and Sale of Assets by, Major Constituent Banks.
Except as provided in Article Ten, so long as any of the Debt
Securities shall be outstanding, the Company will not
(a) sell, assign, transfer or otherwise dispose of any
shares of, or securities convertible into or options, warrants or rights to
subscribe for or purchase shares of, Voting Stock of a Major Constituent Bank,
and will not permit a Major Constituent Bank to issue any shares of, or
securities convertible into or options, warrants or rights to subscribe for or
purchase shares of, such Voting Stock if, after giving effect to any such
transaction and to the issuance of the maximum number of shares of Voting Stock
of such Major Constituent Bank issuable upon the exercise of all such
convertible securities, options, warrants or rights, the Major Constituent Bank
would cease to be a Controlled Subsidiary, except as otherwise provided below
in this Section 1207 or in Section 1209; or
(b) permit a Major Constituent Bank to
(i) merge or consolidate with or into any other
corporation, unless the surviving corporation is, or upon consummation of the
merger or consolidation will become a Controlled Subsidiary, or
(ii) lease sell or transfer all or substantially
all of its properties and assets to any corporation or other Person, except to
a Controlled Subsidiary or a Person that, upon such lease, sale or transfer,
will become a Controlled Subsidiary.
SECTION 1208. Exempted Transactions.
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Notwithstanding Section 1207(a), the Company may sell, assign,
transfer or otherwise dispose of any shares of, or securities convertible into,
or options, warrants or rights to subscribe for or purchase shares of, Voting
Stock of a Major Constituent Bank
(i) in compliance with an order of a court or regulatory
authority of competent jurisdiction or as a condition imposed by such court or
authority to the acquisition by the Company, directly or indirectly, of any
other corporation or entity; or
(ii) where the proceeds, if any, from any such sale,
assignment or disposition are within a reasonable period of time invested in
any Controlled Subsidiary (including any person which upon such investment
becomes a Controlled Subsidiary) engaged in a banking business or any other
business then legally permissible for bank holding companies pursuant to an
understanding or agreement in principle reached at the time of such sale,
assignment or disposition.
SECTION 1209. Officers' Certificate as to Default; Notice of
Default.
(a) The Company will deliver to the Trustee, on or before
a date not more than four months after the end of each fiscal year of the
Company (which on the date hereof is the calendar year) ending after the date
hereof, an Officers' Certificate stating whether or not to the best knowledge
of the signers thereof (one of whom must be the principal executive officer,
principal operating officer or principal financial officer of the Company) the
Company is in default in the performance and observation of any of the terms,
provisions and conditions of this Indenture, and, if the Company shall be in
default, specifying all such defaults and the nature thereof of which they may
have knowledge.
(b) The Company shall file with the Trustee written
notice of the occurrence of any default (as defined in Section 602) or Event of
Default within ten Business Days of the Company becoming aware of any such
default or Event of Default.
SECTION 1210. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
the covenants set forth in Sections 1207 to 1209, inclusive, or, if so
specified pursuant to Section 301, any other covenant specified pursuant to
Section 301 with respect to the Debt Securities of any series if, before the
time for such compliance, the Holders of at least a majority in principal
amount of the Outstanding Debt Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant, but no such waiver shall extend to or affect
such covenant 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 in respect of any such covenant shall remain in full force and effect.
ARTICLE THIRTEEN
REDEMPTION OF DEBT SECURITIES
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SECTION 1301. Applicability of Article.
Debt Securities of any series which are redeemable before
their Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified pursuant to Section 301 for Debt Securities of any
series) in accordance with this Article.
SECTION 1302. Tax Redemption; Special Tax Redemption.
(a) Unless otherwise specified pursuant to Section 301,
Debt Securities of any series may be redeemed at the option of the Company in
whole, but not in part, on not more than 60 days' and not less than 30 days'
notice, on any Redemption Date at the Redemption Price specified pursuant to
Section 301 (or at par if none specified), if the Company determines that (1)
it has or will become obligated to pay additional amounts on such Debt
Securities pursuant to Section 1202 as a result of any change in, or amendment
to, the laws (or any regulations or rulings promulgated thereunder) of the
United States or any political subdivision or taxing authority thereof or
therein, or any change in official position regarding the application or
interpretation of such laws, regulations or rulings, which change or amendment
becomes effective on or after the date on which any Person (including any
Person acting as underwriter, broker or dealer) agrees to purchase any of such
Debt Securities pursuant to their original issuance or (2) on or after such
date, any action has been taken by any taxing authority of, or any decision has
been rendered in a court of competent jurisdiction in, the United States or any
political subdivision or taxing authority thereof or therein, including any of
those actions specified in (1) above, whether or not such action was taken or
decision was rendered with respect to the Company, or any change, amendment,
application or interpretation shall be officially proposed which in any such
case, in the written opinion to the Company of independent legal counsel of
recognized standing, will result in a material probability that the Company
will become obligated to pay additional amounts with respect to Debt Securities
pursuant to Section 1202. Prior to the publication of any notice of redemption
pursuant to this Section 1302(a), the Company shall deliver to the Trustee (i)
an Officers' Certificate stating that the Company is entitled to effect such
redemption and setting forth a statement of facts showing that the conditions
precedent to the right of the Company so to redeem have occurred, and (ii) an
Opinion of Counsel to such effect based on such statement of facts.
(b) Unless otherwise specified pursuant to Section 301,
if the Company shall determine that any payment made outside the United States
by the Company or any of its Paying Agents in respect of any Bearer Security
which is not a Floating Rate Security (an "Affected Security") would, under any
present or future laws or regulations of the Untied States, be subject to any
certification, documentation, information or other reporting requirement of any
kind, the effect of which requirement is the disclosure to the Company, any
Paying Agent or any governmental authority of the nationality, residence or
identity of a beneficial owner of such Affected Security that is a United
States Alien (other than such a requirement (i) that would not be applicable to
a payment made by the Company or any one of its Paying Agents (A) directly to
the beneficial owner or (B) to a custodian, nominee or other agent of the
beneficial owner, or (ii) that can be satisfied by such custodian, nominee or
other agent certifying to the effect that the beneficial owner is a United
States Alien; provided, that, in any case referred to in clause (i)(B) or (ii),
payment by the custodian, nominee or agent to the beneficial owner is not
otherwise subject to any such requirement), the Company shall elect either (x)
(1) in the case
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of Affected Securities that are Discount Securities, to permit the Holders of
such Affected Securities to elect, but only if done within 90 days after
publication of the Determination Notice as hereunder provided, to surrender the
same for redemption in whole but not in part at the Redemption Price, and (2)
in the case of any other Affected Securities, to redeem such Affected
Securities, at the Redemption Price, or (y) if the conditions of the next
succeeding paragraph are satisfied, to pay the additional amounts specified in
such paragraph. The Company shall make such determination as soon as
practicable and publish prompt notice thereof (the "Determination Notice"),
stating the effective date of such certification, documentation, information or
reporting requirement, whether the Company elects to redeem (or, in the case of
Discount Securities, permit the Holders to elect to surrender for redemption)
the Affected Securities or to pay the additional amounts specified in the next
succeeding paragraph, and (if applicable) the last date by which the redemption
of the Affected Securities must take place, as provided in the next succeeding
sentence. If any Affected Securities are to be redeemed pursuant to this
paragraph, the redemption shall take place on such date, not later than one
year after the publication of the Determination Notice, as the Company shall
specify by notice to the Trustee at least 60 days before the Redemption Date.
Notice of such redemption of the Affected Securities shall be given to the
Holders of Affected Securities not more than 60 days nor less than 30 days
prior to the Redemption Date. Notwithstanding the foregoing, the Company shall
not so redeem (or, in the case of Discount Securities, permit the Holders to
elect to surrender for redemption) the Affected Securities if the Company shall
subsequently determine, not less than 30 days prior to the Redemption Date,
that subsequent payments on the Affected Securities would not be subject to any
such certification, documentation, information or other reporting requirement,
in which case the Company shall publish prompt notice of such subsequent
determination and any earlier redemption notice shall be revoked and of no
further effect. If and so long as the certification, documentation,
information or other reporting requirement referred to in the preceding
paragraph would be fully satisfied by payment of a backup withholding tax or
similar charge, the Company may elect to pay such additional amounts as may be
necessary so that every net payment made outside the United States following
the effective date of such requirement by the Company or any of its Paying
Agents in respect of any Affected Security of which the beneficial owner is a
United States Alien (but without any requirement that the nationality,
residence or identity of such beneficial owner be disclosed to the Company, any
Paying Agent or any government authority), after deduction or withholding for
or on account of such backup withholding tax or similar charge (other than a
backup withholding tax or similar charge which (i) would not be applicable in
the circumstances referred to in the parenthetical clause of the first sentence
of the preceding paragraph, or (ii) is imposed as a result of presentation of
any such Affected Security for payment more than 15 days after the date on
which such payment became due and payable or on which payment thereof was duly
provided for, whichever occurs later), will not be less than the amount
provided in any such Affected Security to be then due and payable. If the
Company elects to pay additional amounts pursuant to this paragraph, the
Company shall have the right to redeem (or, in the case of Discount Securities,
permit the Holders to elect, but only for the period of 30 days after the
publication of notice of the redemption as hereinafter provided, to surrender
for redemption) the Affected Securities as a whole, but not in part, at any
time at the Redemption Price, subject to the provisions of the last two
sentences of the immediately preceding paragraph. If the Company has made the
determination described in the preceding paragraph with respect to
certification, documentation, information or other reporting requirements
applicable only to interest and subsequently makes a determination in the
manner and of the nature referred to in such preceding paragraph with respect
to such requirements
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applicable to principal, the Company will redeem the Affected Securities in the
manner and on the terms described in the preceding paragraph unless the Company
elects to have the provisions of this paragraph apply rather than the
provisions of the immediately preceding paragraph. If in such circumstances
the Affected Securities are to be redeemed, the Company shall have no
obligation to pay additional amounts pursuant to this paragraph with respect to
principal, but will be obligated to pay such additional amounts with respect to
interest accrued and unpaid to the date of such redemption. If the Company
elects to pay additional amounts pursuant to this paragraph and the condition
specified in the first sentence of this paragraph should no longer be
satisfied, then the Company shall redeem (or, in the case of Discount
Securities, permit the Holders to elect, but only for the period of 30 days
after publication of the notice of redemption as hereinafter provided, to
surrender for redemption) the Affected Securities in whole, but not in part, at
the Redemption Price subject to the provisions of the last two sentences of the
immediately preceding paragraph. If the Company elects to, or is required to,
redeem (or, in the case of Discount Securities, required to permit Holders to
elect to surrender for redemption) the Affected Securities pursuant to the two
immediately preceding sentences, it shall publish prompt notice thereof. If
the Affected Securities are to be redeemed pursuant to this paragraph, the
redemption shall take place on such date, not later than one year after
publication of the notice of redemption, as the Company shall specify by notice
to the Trustee at least 60 days prior to the Redemption Date. Any redemption
payments made by the Company pursuant to this paragraph shall be subject to the
continuing obligation of the Company to pay additional amounts pursuant to this
paragraph.
SECTION 1303. Election to Redeem; Notice to Trustee.
The election of the Company to redeem (or in the case of
Discount Securities, to permit the Holders to elect to surrender for
redemption) any Debt Securities shall be evidenced by a Board Resolution. In
case of any redemption at the election of the Company of less than all of the
Debt Securities of any series pursuant to Section 1304, 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 in its sole discretion),
notify the Trustee of such Redemption Date and of the principal amount of Debt
Securities of such series to be redeemed. In case of any redemption at the
election of the Company of all of the Debt Securities of any series, the
Company shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee in its
sole discretion), notify the Trustee of such Redemption Date. In the case of
any redemption of Debt Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Debt Securities or elsewhere in
this Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restrictions.
SECTION 1304. Selection by Trustee of Debt Securities to Be
Redeemed.
Except in the case of a redemption in whole of the Bearer
Securities or the Registered Securities of such series, if less than all the
Debt Securities of any series are to be redeemed at the election of the Company
(other than as provided in Section 1302), the particular Debt Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Debt Securities of such series not
previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may
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provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Debt Securities of such series or any integral
multiple thereof) of the principal amount of Debt Securities of such series in
a denomination larger than the minimum authorized denomination for Debt
Securities of such series pursuant to Section 302 in the Currency in which the
Debt Securities of such series are denominated. The portions of the principal
amount of Debt Securities so selected for partial redemption shall be equal to
the minimum authorized denominations for Debt Securities of such series
pursuant to Section 302 in the Currency in which the Debt Securities of such
series are denominated or any integral multiple thereof, except as otherwise
set forth in the applicable form of Debt Securities. In any case where more
than one Registered Security of such series is registered in the same name, the
Trustee in its discretion may treat the aggregate principal amount so
registered as if it were represented by one Registered Security of such series.
The Trustee shall promptly notify the Company in writing of
the Debt Securities selected for redemption and, in the case of any Debt
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Debt
Securities shall relate, in the case of any Debt Security redeemed or to be
redeemed only in part, to the portion of the principal amount of such Debt
Security which has been or is to be redeemed.
SECTION 1305. Notice of Redemption.
Notice of redemption shall be given by the Company, or at the
Company's request, by the Trustee in the name and at the expense of the
Company, not less than 30 days and not more than 60 days prior to the
Redemption Date to the Holders of Debt Securities of any series to be redeemed
in whole or in part pursuant to this Article Thirteen, in the manner provided
in Section 105. Any notice so given shall be conclusively presumed to have
been duly given, whether or not the Holder receives such notice. Failure to
give such notice, or any defect in such notice to the Holder of any Debt
Security of a series designated for redemption, in whole or in part, shall not
affect the sufficiency of any notice of redemption with respect to the Holder
of any other Debt Security of such series.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that Debt Securities of such series are being
redeemed by the Company pursuant to provisions contained in this Indenture or
the terms of the Debt Securities of such series or a supplemental indenture
establishing such series, if such be the case, together with a brief statement
of the facts permitting such redemption,
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(4) if less than all Outstanding Debt Securities of any
series are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Debt Securities to be
redeemed,
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security to be redeemed, and that
interest thereon, if any, shall cease to accrue on and after said date,
(6) that, unless otherwise specified in such notice,
Coupon Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption, failing which the amount of any such missing Coupon or Coupons will
be deducted from the Redemption Price,
(7) the Place or Places of Payment where such Debt
Securities are to be surrendered for payment of the Redemption Price,
(8) 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(b) or otherwise,
the last date on which such exchanges may be made,
(9) that the redemption is for a sinking fund, if such
is the case, and
(10) the CUSIP number or numbers of the Debt Security to
be redeemed.
SECTION 1306. Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on the Redemption Date
for any Debt Securities, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1204) an amount of money in the
Currency or Currencies in which such Debt Securities are denominated (except as
provided pursuant to Section 301) sufficient to pay the Redemption Price of
such Debt Securities or any portions thereof which are to be redeemed on that
date.
SECTION 1307. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, any Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price in the Currency in which the Debt Securities of
such series are payable (except as otherwise specified pursuant to Sections 301
or 310), and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Debt Securities shall cease to bear
interest. Upon surrender of any such Debt Security for redemption in
accordance with said notice, such Debt Security shall be paid by the Company at
the Redemption Price; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1203) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of Coupons
for such interest,
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and provided, further, that, unless otherwise specified as contemplated by
Section 301, installments of interest on Registered Securities which have a
Stated Maturity on or prior to the Redemption Date for such Debt Securities
shall be payable according to the terms of such Debt Securities and the
provisions of Section 307.
If any Debt Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Debt Security. If any Coupon Security surrendered
for redemption shall not be accompanied by all Coupons appertaining thereto
maturing on or after the Redemption Date, the Redemption Price for such Coupon
Security may be reduced by an amount equal to the face amount of all such
missing Coupons. If thereafter the Holder of such Coupon shall surrender to
any Paying Agent outside the United States any such missing Coupon in respect
of which a deduction shall have been made from the Redemption Price, such
Holder shall be entitled to receive the amount so deducted. The surrender of
such missing Coupon or Coupons may be waived by the Company and the Trustee, if
there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless.
SECTION 1308. Debt Securities Redeemed in Part.
Any Debt Security which is to be redeemed only in part shall
be surrendered at the Corporate Trust Office or such other office or agency of
the Company as is specified pursuant to Section 301 (in the case of Registered
Securities) and at an office of the Trustee or such other office or agency of
the Company outside the United States as is specified pursuant to Section 301
(in the case of Bearer Securities) with, if the Company, the Security Registrar
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Security Registrar and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing, and the Company shall execute, and the Trustee shall authenticate and
make available for delivery to the Holder of such Debt Security without service
charge, a new Debt Security or Debt Securities of the same series of like tenor
and form, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Debt Security so surrendered, and, in the case of a
Coupon Security, with appropriate Coupons attached. In the case of a Debt
Security providing appropriate space for such notation, at the option of the
Holder thereof, the Trustee in lieu of delivering a New Debt Security or Debt
Securities as aforesaid, may make a notation on such Debt Security of the
payment of the redeemed portion thereof.
ARTICLE FOURTEEN
SINKING FUNDS
SECTION 1401. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Debt Securities of a series except as
otherwise specified pursuant to Section 301
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for Debt Securities of such series. The minimum amount of any sinking fund
payment provided for by the terms of Debt Securities of any series is herein
referred to as a "mandatory sinking fund payment," and any payment in excess of
such minimum amount provided for by the terms of Debt Securities of any series
is herein referred to as an "optional sinking fund payment." If provided for by
the terms of Debt Securities of any series, the amount of any cash sinking fund
payment may be subject to reduction as provided in Section 1402. Each sinking
fund payment shall be applied to the redemption of Debt Securities of any
series as provided for by the terms of Debt Securities of such series.
SECTION 1402. Satisfaction of Mandatory Sinking Fund Payments with
Debt Securities.
In lieu of making all or any part of a mandatory sinking fund
payment with respect to any Debt Securities of a series in cash, the Company
may at its option, at any time no more than sixteen months and no less than 45
days prior to the date on which such sinking fund payment is due, deliver to
the Trustee Debt Securities of such series (together with the unmatured
Coupons, if any, appertaining thereto) theretofore purchased or otherwise
acquired by the Company, except Debt Securities of such series which have been
redeemed through the application of mandatory sinking fund payments pursuant to
the terms of the Debt Securities of such series, accompanied by a Company Order
instructing the Trustee to credit such obligations and stating that the Debt
Securities of such series were originally issued by the Company by way of bona
fide sale or other negotiation for value; provided that such Debt Securities
shall not have been previously so credited. Such Debt Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Debt Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION 1403. Redemption of Debt Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Debt Securities (unless a shorter period shall be
satisfactory to the Trustee), the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash in the Currency or
Currencies in which the Debt Securities of such series are denominated (except
as provided pursuant to Section 301) and the portion thereof, if any, which is
to be satisfied by delivering and crediting Debt Securities of such series
pursuant to Section 1402 and whether the Company intends to exercise its rights
to make a permitted optional sinking fund payment with respect to such series.
Such certificate shall be irrevocable and upon its delivery the Company shall
be obligated to make the cash payment or payments therein referred to, if any,
on or before the next succeeding sinking fund payment date. In the case of the
failure of the Company to deliver such certificate, the sinking fund payment
due on the next succeeding sinking fund payment date for such series shall be
paid entirely in cash and shall be sufficient to redeem the principal amount of
the Debt Securities of such series subject to a mandatory sinking fund payment
without the right to deliver or credit Debt Securities as provided in Section
1402 and without the right to make any optional sinking fund payment with
respect to such series at such time.
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Any sinking fund payment or payments (mandatory or optional)
made in cash plus any unused balance of any preceding sinking fund payments
made with respect to the Debt Securities of any particular series shall be
applied by the Trustee (or by the Company if the Company is acting as its own
Paying Agent) on the sinking fund payment date on which such payment is made
(or if such payment is made before a sinking fund payment date, on the sinking
fund payment date immediately following the date of such payment) to the
redemption of Debt Securities of such series at the Redemption Price specified
in such Debt Securities with respect to the sinking fund. Any sinking fund
moneys not so applied or allocated by the Trustee (or by the Company if the
Company is acting as its own Paying Agent) to the redemption of Debt Securities
shall be added to the next sinking fund payment received by the Trustee (or if
the Company is acting as its own Paying Agent segregated and held in trust as
provided in Section 1204) for such series and, together with such payment (or
such amount so segregated) shall be applied in accordance with the provisions
of this Section. Any and all sinking fund moneys with respect to the Debt
Securities of any particular series held by the Trustee (or if the Company is
acting as its own Paying Agent, segregated and held in trust as provided in
Section 1204) on the last sinking fund payment date with respect to Debt
Securities of such series and not held for the payment or redemption of
particular Debt Securities of such series shall be applied by the Trustee (or
by the Company if the Company is acting as its own Paying Agent), together with
other moneys if necessary, to be deposited (or segregated) sufficient for the
purpose to the payment of the principal of the Debt Securities of such series
at Maturity.
The Trustee shall select or cause to be selected the Debt
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1304 and the Company shall cause notice of the redemption
thereof to be given in the manner provided in Section 1305. Such notice having
been duly given, the redemption of such Debt Securities shall be made upon the
terms and in the manner stated in Section 1307. On or before each sinking fund
payment date, the Company shall pay to the Trustee (or, if the Company is
acting as its own Paying Agent, the Company shall segregate and hold in trust
as provided in Section 1204) in cash a sum, in the Currency or Currencies in
which Debt Securities of such series are denominated (except as provided
pursuant to Sections 301 or 310), equal to the principal and any interest
accrued to the Redemption Date for Debt Securities or portions thereof to be
redeemed on such sinking fund payment date pursuant to this Section.
Neither the Trustee nor the Company shall redeem any Debt
Securities of a series with sinking fund moneys or mail any notice of
redemption of Debt Securities of such series by operation of the sinking fund
for such series during the continuance of a default in payment of interest, if
any, on any Debt Securities of such series or of any Event of Default (other
than an Event of Default occurring as a consequence of this paragraph) with
respect to the Debt Securities of such series except that if the notice of
redemption shall have been provided in accordance with the provisions hereof,
the Trustee (or the Company, if the Company is then acting as its own Paying
Agent) shall redeem such Debt Securities if cash sufficient for that purpose
shall be deposited with the Trustee (or segregated by the Company) for that
purpose in accordance with the terms of this Article. Except as aforesaid any
moneys in the sinking fund for such series at the time when any such default or
Event of Default shall occur and any moneys thereafter paid into such sinking
fund shall, during the continuance of such default or Event of Default, be held
as security for the payment of the Debt Securities and Coupons, if any, of such
series; provided, however, that in case such default or Event of Default shall
have
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been cured or waived as provided herein such moneys shall thereafter be applied
on the next sinking fund payment date for the Debt Securities of such series on
which such moneys may be applied pursuant to the provisions of this Section.
ARTICLE FIFTEEN
DEFEASANCE
SECTION 1501. Applicability of Article.
If, pursuant to Section 301, provision is made for the
defeasance of Debt Securities of a series pursuant to this Article 15, and if
the Debt Securities of such series are Registered Securities and denominated
and payable only in Dollars (except as provided pursuant to Section 301) then
the provisions of this Article shall be applicable except as otherwise
specified pursuant to Section 301 for Debt Securities of such series.
Defeasance provisions, if any, for Debt Securities denominated in a Foreign
Currency or Currencies or for Bearer Securities may be specified pursuant to
Section 301.
SECTION 1502. Defeasance Upon Deposit of Moneys or U. S. Government
Obligations
At the Company's option, either (a) the Company shall be
deemed to have been Discharged (as defined below) from its obligations with
respect to Debt Securities of any series on the 91st day after the applicable
conditions set forth below have been satisfied or (b) the Company shall cease
to be under any obligation to comply with any term, provision or condition set
forth in Sections 1001, 1207 and 1208 with respect to Debt Securities of any
series (and if so specified pursuant to Section 301, any other restrictive
covenant added for the benefit of such series pursuant to Section 301) at any
time after the applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to
be deposited irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of
the Debt Securities of such series (i) money in an amount, or (ii) U.S.
Government Obligations (as defined below) which through the payment of interest
and principal in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in an amount,
or (iii) a combination of (i) and (ii), sufficient, in the opinion (with
respect to (i) and (ii)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee (upon which the Trustee may conclusively rely), to pay and discharge
each installment of principal (including any mandatory sinking fund payments)
of and premium, if any, and interest on, the Outstanding Debt Securities of
such series on the dates such installments of interest or principal and premium
are due;
(2) such deposit shall not cause the Trustee with
respect to the Debt Securities of that series to have a conflicting interest as
defined in Section 608 and for purposes of the Trust Indenture Act with respect
to the Debt Securities of any series;
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(3) the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that such deposit will not result
in a breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by which
it is bound;
(4) if the Debt Securities of such series are
then listed on any national securities exchange, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Company's
exercise of its option under this Section would not cause such Debt Securities
to be delisted;
(5) the Company shall have delivered to the
Trustee an Officer's Certificate to the effect that no Event of Default or
event (including such deposit) which, with notice or lapse of time or both,
would become an Event of Default with respect to the Debt Securities of such
series shall have occurred and be continuing on the date of such deposit and no
Event of Default under Section 501(1) or (2) or event which with the giving of
notice or lapse of time, or both, would become an Event of Default under
Section 501(1) or (2) shall have occurred and be continuing on the 91st day
after such date; and
(6) the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Company has received from,
or there has been published by, the Internal Revenue Service a ruling to the
effect that the Holders of the Debt Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result of
such deposit, defeasance or Discharge.
"Discharged" means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by, and obligations
under, the Debt Securities of such series and to have satisfied all the
obligations under this Indenture relating to the Debt Securities of such series
(and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except (A) the rights of Holders of Debt
Securities of such series to receive, from the trust fund described in clause
(1) above, payment of the principal of (and premium, if any) and interest on
such Debt Securities when such payments are due, (B) the Company's obligations
with respect to the Debt Securities of such series under Sections 304, 305,
306, 1203 and 1503 and (C) the rights, powers, trusts, duties and immunities of
the Trustee hereunder, including, but not limited to, Section 607 hereof.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States 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 the payment
of which is unconditionally guaranteed as a full faith and credit obligation by
the United States, which, in either case under clauses (i) or (ii), are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian
with respect to any such U.S. Government Obligation or a specific payment of
interest on or principal of any such U.S. Government obligation held by such
custodian for the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in
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respect of the U.S. Government Obligation or the specific payment of interest
on or principal of the U.S. Government Obligation evidenced by such depository
receipt.
SECTION 1503 Deposited Moneys and U.S. Government Obligations to
Be Held in Trust.
All moneys and U.S. Government Obligations deposited with the
Trustee pursuant to Section 1502 in respect of Debt Securities of a series
shall be held in trust and applied by it, in accordance with the provisions of
such Debt Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Debt Securities, of all
sums due and to become due thereon for principal (and premium, if any) and
interest, if any, but such money need not be segregated from other funds except
to the extent required by law.
SECTION 1504. Repayment to Company.
The Trustee and any Paying Agent shall promptly pay or return
to the Company upon Company Request any moneys or U.S. Government Obligations
held by them at any time that are not required for the payment of the principal
of (and premium, if any) and interest on the Debt Securities of any series for
which money or U.S. Government Obligations have been deposited pursuant to
Section 1502.
The provisions of this last paragraph of Section 1204 shall
apply to any money held by the Trustee or any Paying Agent under this Article
that remains unclaimed for two years after the Maturity of any series of Debt
Securities for which money or U.S. Government Obligations have been deposited
pursuant to Section 1502.
ARTICLE SIXTEEN
SUBORDINATION OF DEBT SECURITIES
SECTION 1601. Debt Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees that anything in this
Indenture or the Debt Securities of any series to the contrary notwithstanding,
the indebtedness evidenced by the Debt Securities of each series is subordinate
and junior in right of payment to all Senior Indebtedness or the extent
provided herein, and each Holder of Debt Securities of each series, by his
acceptance thereof, likewise covenants and agrees to the subordination herein
provided and shall be bound by the provisions hereof. Senior Indebtedness
shall continue to be Senior Indebtedness and entitled to the benefits of these
subordination provisions irrespective of any amendment, modification or waiver
of any term of the Senior Indebtedness or extension or renewal of the Senior
Indebtedness. In the event that the Company shall default in the payment of
any principal of (or premium, if any) or interest on any Senior Indebtedness
when the same becomes due and payable, whether at maturity or at a date fixed
for prepayment or by declaration of acceleration or otherwise, then, upon
written notice of such default to the Company by the holders of Senior
Indebtedness or any trustee therefor, unless and until such default shall have
been cured or
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waived or shall have ceased to exist, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) shall be made or agreed to be
made on account of the principal of (or premium, if any) or interest on any of
the Debt Securities, or in respect of any redemption, retirement, purchase or
other acquisition of any of the Debt Securities.
In the event of
(a) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relating to the Company, its creditors or its property,
(b) any proceeding for the liquidation,
dissolution or other winding up of the Company, voluntary or involuntary,
whether or not involving insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit
of creditors, or
(d) any other marshalling of the assets of the
Company,
all Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall
be made to any Holder of any of the Debt Securities on account thereof. Any
payment or distribution, whether in cash, securities or other property (other
than securities of the Company or any other corporation provided for by a plan
of reorganization or readjustment the payment of which is subordinate, at least
to the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Debt Securities, to the payment of all Senior
Indebtedness at the time outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), which would
otherwise (but for these subordination provisions) be payable or deliverable in
respect of the Debt Securities of any series shall be paid or delivered
directly to the trustee, 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 Senior Indebtedness
remaining unpaid to the extent necessary to pay all Senior Indebtedness in
full. In the event of any such proceeding, after payment in full of all sums
owing with respect to Senior Indebtedness, the Holders of the Debt Securities,
together with the holders of any obligations of the Company ranking on a parity
with the Debt Securities, shall be entitled to be paid from the remaining
assets of the Company the amounts at the time due and owing on account of
unpaid principal of (and premium, if any) and interest on the Debt Securities
and such other obligations before any payment or other distribution, whether in
cash, property or otherwise, shall be made on account of any capital stock or
any obligations of the Company ranking junior to the Debt Securities and such
other obligations. In the event that, notwithstanding the foregoing, any
payment or distribution of any character or any security, whether in cash,
securities or other property (other than securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in these
subordination provisions with respect to the indebtedness evidenced by the Debt
Securities, to the payment of all Senior Indebtedness at the time outstanding
and to any securities issued in respect thereof under any such plan of
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reorganization or readjustment), shall be received by the Trustee or any Holder
in contravention of any of the terms hereof, such payment or distribution or
security shall be received in trust for the benefit of, and shall be paid over
or delivered and transferred to, the trustee, 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
Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full. In the event of the failure of the Trustee or any Holder
to endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the
same.
No present or future holder of any Senior Indebtedness shall
be prejudiced in the right to enforce subordination of the indebtedness
evidenced by the Debt Securities by any act or failure to act on the part of
the Company. Nothing contained herein shall impair, as between the Company and
the Holders of Debt Securities of each series, the obligation of the Company to
pay to such Holders the principal of (and premium, if any) and interest on such
Debt Securities or prevent the Trustee or the Holder from exercising all
rights, powers and remedies otherwise permitted by applicable law or hereunder
upon a default or Event of Default hereunder, all subject to the rights of the
holders of the Senior Indebtedness to receive cash, securities or other
property otherwise payable or deliverable to the Holders. Senior Indebtedness
shall not be deemed to have been paid in full unless the holders thereof shall
have received cash, securities or other property equal to the amount of such
Senior Indebtedness then outstanding. Upon the payment in full of all Senior
Indebtedness, the Holders of Debt Securities of each series shall be subrogated
to all rights of any holders of Senior Indebtedness to receive any further
payments or distributions applicable to the Senior Indebtedness until the
indebtedness evidence by the Debt Securities of such series shall have been
paid in full, and such payments or distributors received by such Holders, by
reason of such subrogation, of cash, securities or other property which
otherwise would be paid or distributed to the holders of Senior Indebtedness,
shall, as between the Company and its creditors other than the holders of
Senior Indebtedness, on the one hand, and such Holders on the other hand, be
deemed to be a payment by the Company on account of Senior Indebtedness, and
not on account of the Debt Securities of such series.
The provisions of this Section 1601 shall not impair any
rights, interests, remedies or powers of any secured creditor of the Company in
respect of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of the Company, otherwise
ranking on a parity with the Debt Securities or ranking junior to the Debt
Securities, shall not be deemed to prevent such obligations from constituting,
respectively, obligations ranking on a parity with the Debt Securities or
ranking junior to the Debt Securities.
SECTION 1602. Reliance on Certificate of Liquidating Agent; Further
Evidence as to Ownership of Senior Indebtedness.
Upon any payment or distribution of assets of the Company, the
Trustee and the Holders shall be entitled to rely upon an order or decree made
by any court of competent jurisdiction in which such dissolution or winding up
or liquidation or reorganization or
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arrangement proceedings are pending or upon a certificate of the trustee in
bankruptcy, receiver, assignee for the benefit of creditors or other Person
making such payment or distribution, delivered to the Trustee or to the
Holders, for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other acts pertinent thereto or
to this Article Sixteen. In the absence of any such bankruptcy trustee,
receiver, assignee or other Person, the Trustee shall be entitled to rely upon
a written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee or representative on behalf of such holder) as
evidence that such Person is holder of such Senior Indebtedness (or is such a
trustee or representative). In the event that the Trustee determines, in good
faith, that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distributions pursuant to this Article Sixteen, the Trustee may request such
person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Indebtedness held by such Person, as to the extent to
which such Person is entitled to participate in such payment or distribution,
and as to other facts pertinent to the rights of such Person under this Article
Sixteen, and if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment. The Trustee, however, shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness.
SECTION 1603. Payment Permitted If No Default.
Nothing contained in this Article Sixteen or elsewhere in this
Indenture, or in any of the Debt Securities, shall prevent (a) the Company at
any time, except during the pendency of any dissolution, winding up,
liquidation or reorganization proceedings referred to in, or under the
conditions described in, Section 1601, from making payments of the principal of
(or premium, if any) or interest on the Debt Securities, or (b) the application
by the Trustee or any Paying Agent of any moneys deposited with it hereunder to
payments of the principal of (or premium, if any) or interest on the Debt
Securities, if, at the time of such deposit, the Trustee or such Paying Agent,
as the case may be, did not have the written notice provided for in Section
1604 of any event prohibiting the making of such deposit, or if, at the time of
such deposit (whether or not in trust) by the Company with the Trustee or
Paying Agent (other than the Company) such payment would not have been
prohibited by the provisions of this Article, and the Trustee or any Paying
Agent shall not be affected by any notice to the contrary received by it on or
after such date.
SECTION 1604. Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article Sixteen or elsewhere in this
Indenture contained to the contrary notwithstanding, the Trustee shall not at
any time be charged with knowledge of the existence of any facts which would
prohibit the making of any payment of money to or by the Trustee and shall be
entitled conclusively to assume that no such facts exist and that no event
specified in Section 1601 has happened, until the Trustee shall have received
an Officers' Certificate to that effect or notice in writing to that effect
signed by or on behalf of the holder or holders, or their representatives, of
Senior Indebtedness who shall have been certified by the Company or otherwise
established to the reasonable satisfaction of the Trustee to be such holder
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or holders or representatives or from any trustee under any indenture pursuant
to which such Senior Indebtedness shall be outstanding; provided, however,
that, if prior to the third Business Day preceding the date upon which by the
terms hereof any money becomes payable (including, without limitation, the
payment of either the principal of or interest on any Debt Security), or in the
event of the execution of an instrument pursuant to Section 401 acknowledging
satisfaction and discharge of this Indenture, then if prior to the second
Business Day preceding the date of such execution, the Trustee or any Paying
Agent shall not have received with respect to such money the Officers'
Certificate or notice provided for in this Section 1604, then, anything herein
contained to the contrary notwithstanding, the Trustee or such Paying Agent
shall have full power and authority to receive such money and apply the same to
the purpose for which it was received and shall not be affected by any notice
to the contrary which may be received by it on or after such date. The Company
shall give prompt written notice to the Trustee and to the Paying Agent of any
facts which would prohibit the payment of money to or by the Trustee or any
Paying Agent.
SECTION 1605. Trustee to Effectuate Subordination.
Each Holder of Debt Securities 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 as between such Holder
and holders of Senior Indebtedness as provided in this Article Sixteen and
appoints the Trustee its attorney-in-fact for any and all such purposes.
SECTION 1606. Rights of Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in
this Article Sixteen with respect to any Senior Indebtedness which may at the
time be held by it, to the same extent as any other holder of Senior
Indebtedness and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder. Nothing in this Article Sixteen shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 607.
SECTION 1607. 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 Sixteen shall in such case (unless the
context shall otherwise require) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and purposes as
if the Paying Agent were named in this Article Sixteen in addition to or in
place of the Trustee; provided, however, that Sections 1604 and 1606 shall not
apply to the Company or any Affiliate of the Company if the Company or such
Affiliate acts as Paying Agent.
SECTION 1608. Subordination Rights Not Impaired by Acts or
Omissions of the Company or Holders of Senior
Indebtedness.
No right of any present or future holders of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and
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covenants of this Indenture, regardless of any knowledge thereof which any such
holder may have or be otherwise charged with. The holders of Senior
Indebtedness may, at any time or from time to time and in their absolute
discretion, change the manner, place or terms of payment, change or extend the
time of payment of, or renew or alter, any such Senior Indebtedness, or amend
or supplement any instrument pursuant to which any such Senior Indebtedness is
issued or by which it may be secured, or release any security therefor, or
exercise or refrain from exercising any other of their rights under the Senior
Indebtedness, including, without limitation, the waiver of default thereunder,
all without notice to or assent from the Holders of the Debt Securities or the
Trustee and without affecting the obligations of the Company, the Trustee or
the Holders of the Debt Securities under this Article Sixteen.
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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.
SOUTHTRUST CORPORATION
By:/s/ JAMES W. RAINER, JR.
------------------------------
Title Executive Vice President
ATTEST: /s/ AUBREY D. BARNARD
----------------------
SEAL
CHEMICAL BANK,
as Trustee
By /s/ W.B. DODGE
-------------------------
Title Vice President
ATTEST: /s/ VERA VAYN
----------------------
SEAL
100
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STATE OF ALABAMA
ss.
COUNTY OF JEFFERSON
On the 8th day of May, 1992, before me personally came James W.
Rainer, Jr., to me known, who, being by me duly sworn, did depose and say that
he resides at 2828 Berwick Road, Birmingham, Alabama; that he is Executive Vice
President of SouthTrust Corporation, 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.
ANITA M. WALLS
Notary Public
SEAL
STATE OF NEW YORK
ss.
COUNTY OF NEW YORK
On the 11th day of May, 1992, before me personally came W.B. Dodge, to
me known, who, being by me duly sworn, did depose and say that he resides at
3582 Kenora Pl., Seaford, N.Y.; that he is a Vice President of CHEMICAL BANK,
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.
MICHAEL A. SMITH
Notary Public
SEAL
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EXHIBIT A
(FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR
OR CEDEL, S.A. BY OR ON BEHALF OF A PERSON ENTITLED
TO RECEIVE A DEFINITIVE BEARER SECURITY, TO EXCHANGE AN
INTEREST IN A TEMPORARY GLOBAL NOTE FOR AN INTEREST IN A
PERMANENT GLOBAL NOTE OR TO OBTAIN A PAYMENT OF INTEREST
PRIOR TO THE RECEIPT OF A DEFINITIVE BEARER SECURITY
OR AN INTEREST IN A PERMANENT GLOBAL NOTE)
CERTIFICATE
SouthTrust Corporation
(Insert title of sufficient description
of Debt Securities to be delivered)
This is to certify that as of the date hereof and except as
set forth below, the above-captioned Debt Securities held by you for our
account (i) are owned by persons that are not United States persons, (as
defined below), (ii) are owned by United States persons that (A) are foreign
branches of United States financial institutions (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing
for their own account or for resale, or (B) acquired the Debt Securities
through foreign branches of United States financial institutions and who hold
the Debt Securities through such 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 the issuer or the issuer's
agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by a United States or foreign financial
institutions for purposes of resale during the restricted period (as defined in
U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)). In addition, United
States or foreign financial institutions described in clause (iii) of the
preceding sentence (whether or not also described in clause (i) or (ii))
certify that they have not acquired the Debt 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 Person" means any citizen or
resident of the United States, any corporation or partnership created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "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> 109
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 Debt 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, you may assume that this
certification applies as of such date.
This certification excepts and does not relate to
$_____________ principal amount of such interest in the above Debt Securities
in respect of which we are not able to certify and as to which we understand
exchange and delivery of definitive Debt Securities cannot be made until we so
certify.
We understood that this certification is required in
connection with certain tax laws of the United States. In connection
therewith, if administrative or legal proceedings are commenced or threatened
in connection with which this certification is or would be relevant, we
irrevocably authorize you to produce this certification or a copy thereof to
any interested party in such proceedings.
Dated: ___________________, 19___
(To be dated no earlier than the 15th
day before (i) the Exchange Date or
(ii) the first Interest Payment Date,
if prior to the Exchange Date).
By:___________________________________________
As, or as agent for, the beneficial
owner(s) of the Debt Securities to which
this certificate relates
2
<PAGE> 110
EXHIBIT B
(FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
OR CEDEL, S.A. IN CONNECTION WITH THE EXCHANGE OF A
TEMPORARY GLOBAL NOTE FOR DEFINITIVE BEARER SECURITIES OR FOR AN INTEREST IN A
PERMANENT GLOBAL NOTE OR TO OBTAIN A
PAYMENT OF INTEREST PRIOR TO THE RECEIPT OF DEFINITIVE
BEARER SECURITIES OR AN INTEREST IN A PERMANENT GLOBAL NOTE)
CERTIFICATE
SouthTrust Corporation
(Insert title or sufficient description
of Debt Securities to be delivered)
This is to certify that, based solely on certifications we
have received in writing, by tested telex or by electronic transmission from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Indenture, as of the date hereof,
$______________ principal amount of the above-captioned Debt Securities (i) is
owned by persons that are not United States persons (as defined below), (ii) is
owned by United States persons that (a) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
165-12(c)(l)(v)) ("financial institutions") purchasing for their own account or
for resale, or (b) acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt Securities through
such United States financial institutions on the date hereof (and in either
case (a) or (b), each such United States financial institution hereby agrees to
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 institutions for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations
Section l.163-5(c)(2)(i)(D)(7)). In addition, United States or foreign
financial institutions described in clause (iii) of the preceding sentence
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Debt Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possession.
As used herein, "United States Person" means any citizen or
resident of the United States, any corporation or partnership created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States federal income taxation regardless
of its source, and "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> 111
We further certify (i) we are not making available for
exchange or collection of any interest any portion of the Temporary Global Note
excepted in such certifications and (ii) that as of the date hereof we have not
received any notification from any of our Member Organizations to the effect
that the statements made by such Member Organizations with respect to any
portion of the part submitted herewith for exchange or collection of any
interest are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax laws of the United States. In connection
therewith, if administrative or legal proceedings are commenced or threatened
in connection with which this certification is or would be relevant, we
irrevocably authorize you to produce this certification to any interested party
in such proceedings.
Dated: __________________, 19__
(To be dated no earlier than
(i) the Exchange Date or (ii)
the first Interest Payment Date,
if prior to the Exchange Date)
(_______________________________________
as Operator of the Euro-clear
System) (CEDEL, S.A.)
By______________________________________
2
<PAGE> 112
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of May 1, 1992
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
<S> <C> <C> <C>
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . 608, 610
(c) . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311 (a) . . . . . . . . . . . . . . . . . . . . 613(a)
(b) . . . . . . . . . . . . . . . . . . . . 613(b)
(b)(2) . . . . . . . . . . . . . . . . . . 703(a)(2), 703(b)
Section 312 (a) . . . . . . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313 (a) . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . . . . 703(c)
(d) . . . . . . . . . . . . . . . . . . . . 703(d)
Section 314 (a) . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . 102
Section 315 (a) . . . . . . . . . . . . . . . . . . . . 601(a), 601(c)
(b) . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . . . . . . . . 601(a)
(d)(2) . . . . . . . . . . . . . . . . . . 601(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . 601(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . 514
Section 316 (a) . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . 502, 507, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . 508
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . 1204
Section 318 (a) . . . . . . . . . . . . . . . . . . . . 106
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
1
<PAGE> 1
EXHIBIT 5
March 16, 1994
SouthTrust Corporation
420 North 20th Street
Birmingham, Alabama 35203
Gentlemen:
In our capacity as counsel for SouthTrust Corporation, a
Delaware corporation ("SouthTrust"), we have examined the Registration
Statement on Form S-3 (the "Registration Statement"), in the form as proposed
to filed by SouthTrust with the Securities and Exchange Commission under the
provisions of the Securities Act of 1933, as amended, on March 17, 1994,
relating to $200,000,000 aggregate principal amount of debt securities (the
"Debt Securities"), which Debt Securities are to be offered by SouthTrust to
the public pursuant to such Registration Statement. In this connection, we
have examined such records, documents and proceedings as we have deemed
relevant and necessary as a basis for the opinions expressed herein.
Upon the basis of the foregoing, we are of the opinion that
the Debt Securities to be offered under the Registration Statement, to the
extent actually issued pursuant to the by SouthTrust pursuant to the
Underwriting Agreement described in the Registration Statement, will be duly
and validly authorized and issued, will be fully paid and non-assessable Debt
Securities of SouthTrust, and will constitute legal, valid and binding
obligations of SouthTrust in accordance with their terms.
We hereby consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the Registration Statement.
In addition, we hereby consent to the inclusion of the statements made in
reference to our firm under the caption "LEGAL MATTERS" in the Prospectus which
is a part of the Registration Statement.
Yours very truly,
/s/ BRADLEY, ARANT, ROSE & WHITE
--------------------------------
<PAGE> 1
EXHIBIT 12
STATEMENT OF COMPUTATION OF RATIOS
(Dollars in Thousands)
Earnings to Fixed Charges
<TABLE>
<CAPTION>
1993 1992 1991 1990 1989
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Earnings:
Income before income taxes $ 224,527 $ 164,892 $ 123,315 $ 90,068 $ 91,850
Plus:
Fixed charges 404,360 388,901 479,405 502,764 454,006
Less:
Capitalized interest (82) (201) (591) (949) (855)
------------ ----------- ------------ ----------- ------------
Earnings, including interest on deposits $ 628,805 $ 553,592 $ 602,129 $ 591,883 $ 545,001
Less:
Interest on deposits (335,708) (337,878) (413,880) (411,560) (370,216)
------------ ----------- ------------ ----------- ------------
Earnings, excluding interest on deposits $ 293,097 $ 215,714 $ 188,249 $ 180,323 $ 174,785
------------ ----------- ------------ ----------- ------------
Fixed Charges:
Interest expense $ 397,743 $ 382,930 $ 474,453 $ 498,329 $ 450,147
Capitalized interest 82 201 591 949 855
Amortization of debt expense 195 63 0 43 38
Interest portion of rent expense 6,340 5,707 4,361 3,443 2,966
------------ ----------- ------------ ----------- ------------
Total Fixed Charges $ 404,360 $ 388,901 $ 479,405 $ 502,764 $ 454,006
Less:
Interest on deposits (355,708) (337,878) (413,880) (411,560) (370,216)
------------ ----------- ------------ ----------- ------------
Total Fixed Charges excluding
interest on deposits $ 68,652 $ 51,023 $ 65,525 $ 91,204 $ 83,790
============ =========== ============ =========== ============
Earnings to Fixed Charges:
Including interest on deposits 1.56 1.42 1.26 1.18 1.20
============ =========== ============ =========== ============
Excluding interest on deposits
4.27 4.23 2.87 1.98 2.09
============ =========== ============ =========== ============
</TABLE>
<PAGE> 1
EXHIBIT 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement (Form S-3 for the registration of $200
million in debt securities) of our report dated February 4, 1994 incorporated
by reference in SouthTrust Corporation's Form 10-K for the year ended December
31, 1993, and to all references to our Firm included in or made a part of this
Registration Statement.
/s/ Arthur Andersen & Co.
-------------------------
Birmingham, Alabama
March 16, 1994
<PAGE> 1
EXHIBIT 24
STATE OF ALABAMA )
COUNTY OF JEFFERSON )
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
whose signature appears below hereby constitutes and appoints Aubrey D. Barnard
and William L. Prater, and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign a registration
statement of SouthTrust Corporation on Form S-3 relating to the Debt Securities
registration, including all amendments to such registration statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission and with any state
securities commission, granting unto said attorneys-in-fact and agents, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them or their substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
Dated as of this 14th day of March, 1994
/s/ Bill L. Harbert
--------------------------
Bill L. Harbert, Director
<PAGE> 2
STATE OF ALABAMA )
COUNTY OF JEFFERSON )
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
whose signature appears below hereby constitutes and appoints Aubrey D. Barnard
and William L. Prater, and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign a registration
statement of SouthTrust Corporation on Form S-3 relating to the Debt Securities
registration, including all amendments to such registration statement, and to
file the same, with all exhibits thereto, and other documents in connection the
rewith, with the Securities and Exchange Commission and with any state
securities commission, granting unto said attorneys-in-fact and agents, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them or their substitute
or substitutes, may lawfully do or cause to be done by virtue thereof.
Dated as of this 14th day of March, 1994
/s/ T.W. Mitchell
-----------------------
T.W. Mitchell, Director
<PAGE> 3
STATE OF ALABAMA )
COUNTY OF JEFFERSON )
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
whose signature appears below hereby constitutes and appoints Aubrey D. Barnard
and William L. Prater, and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign a registration
statement of SouthTrust Corporation on Form S-3 relating to the Debt Securities
registration, including all amendments to such registration statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission and with any state
securities commission, granting unto said attorneys-in-fact and agents, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them or their substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
Dated as of this 14th day of March, 1994
/s/ William K. Upchurch, JR.
----------------------------------
William K. Upchurch, Jr., Director
<PAGE> 4
STATE OF ALABAMA )
COUNTY OF JEFFERSON )
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
whose signature appears below hereby constitutes and appoints Aubrey D. Barnard
and William L. Prater, and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign a registration
statement of SouthTrust Corporation on Form S-3 relating to the Debt Securities
registration, including all amendments to such registration statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission and with any state
securities commission, granting unto said attorneys-in-fact and agents, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them or their substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
Dated as of this 14th day of March, 1994
/s/ John M. Bradford
--------------------------
John M. Bradford, Director
<PAGE> 5
STATE OF ALABAMA )
COUNTY OF JEFFERSON )
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
whose signature appears below hereby constitutes and appoints Aubrey D. Barnard
and William L. Prater, and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign a registration
statement of SouthTrust Corporation on Form S-3 relating to the Debt Securities
registration, including all amendments to such registration statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission and with any state
securities commission, granting unto said attorneys-in-fact and agents, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them or their substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
Dated as of this 14th day of March, 1994
/s/ Charles G. Taylor
---------------------------
Charles G. Taylor, Director
<PAGE> 1
EXHIBIT 25
------------------------------------------------------
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) ____
------------------------------------------
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------------------
SouthTrust Corporation
(Exact name of obligor as specified in its charter)
Delaware 63-0574085
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
420 North 20th Street
Birmingham, AL 35290
(Address of principal executive offices) (Zip Code)
----------------------------------
Debt Securities
(Title of the indenture securities)
------------------------------------------------------
<PAGE> 2
GENERAL
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. New York State Banking Department, State House,
Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551 and Federal Reserve Bank of New York, District No. 2, 33
Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985 and December 2, 1991 (see Exhibit 1 to
Form T-1 filed in connection with Registration Statement No. 33-50010, which
is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to
Commence Business (see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 33-46892, which is
incorporated by reference).
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Chemical Bank, 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 10TH day of MARCH, 1994.
CHEMICAL BANK
By /s/ Michael A. Smith
------------------------
Michael A. Smith
Assistant Vice President
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1993, published in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS In Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ................................. $ 4,371
Interest-bearing balances ......................... 5,829
Securities ............................................ 21,834
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 IBF's:
Federal funds sold ................................ 2,125
Securities purchased under agreements to resell ... 900
Loans and lease financing receivables:
Loans and leases, net of unearned income $ 60,826
Less: Allowance for loan and lease losses 2,326
Less: Allocated transfer risk reserve ... 121
-------
Loans and leases, net of unearned income,
allowance, and reserve ............................ 58,379
Assets held in trading accounts ....................... 8,556
Premises and fixed assets (including capitalized
leases)............................................ 1,238
Other real estate owned ............................... 713
Investments in unconsolidated subsidiaries and
associated companies............................... 112
Customer's liability to this bank on acceptance
outstanding ....................................... 1,063
Intangible assets ..................................... 526
Other assets .......................................... 9,864
-------
TOTAL ASSETS .......................................... $115,510
=======
</TABLE>
- 4 -
<PAGE> 5
LIABILITIES
<TABLE>
<S> <C>
Deposits
In domestic offices ................................ $51,611
Noninterest-bearing .........................$19,050
Interest-bearing ............................ 32,561
------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's .......................................... 24,886
Noninterest-bearing .........................$ 136
Interest-bearing ............................ 24,750
------
Federal funds purchased and securities sold under agree-
ments to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased ............................ 8,496
Securities sold under agreements to repurchase ..... 514
Demand notes issued to the U.S. Treasury .............. 1,501
Other Borrowed money .................................. 8,538
Mortgage indebtedness and obligations under capitalized
leases ............................................. 20
Bank's liability on acceptances executed and outstanding 1,084
Subordinated notes and debentures ..................... 3,500
Other liabilities ..................................... 7,419
TOTAL LIABILITIES ..................................... 107,569
-------
EQUITY CAPITAL
Common stock .......................................... 620
Surplus ............................................... 4,501
Undivided profits and capital reserves ................ 2,663
Less: Net unrealized loss on marketable equity
securities...................................... (159)
Cumulative foreign currency translation adjustments ... (2)
TOTAL EQUITY CAPITAL .................................. 7,941
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL .......................... $115,510
=======
</TABLE>
I, Joseph L. Sclafani, S.V.P. & Controller of the
above-named bank, do hereby declare that this Report of
Condition is true and correct to the best of my knowledge
and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this statement of resources and liabilities. We
declare that it has been examined by us, and to the best
of our knowledge and belief has been prepared in confor-
mance with the instructions and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
WILLIAM B. HARRISON )
- 5 -
