Exhibit 4-U
_____________________________________________________________________________
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
AND
THE BANK OF NEW YORK, Trustee
Junior Subordinated Indenture
Dated as of ( ), 1998,
_______________________________
__________________________________________________________________________
TABLE OF CONTENTS
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ARTICLE 1
Definitions
Section 1.01. Certain Terms Defined1
ARTICLE 2
Securities
Section 2.01. Forms Generally. . . . . . . . . . . . . . . . . . . . . . 9
Section 2.02. Form of Trustee's Certificate of Authentication. . . . . . 10
Section 2.03. Amount Unlimited; Issuable in Series . . . . . . . . . . . 10
Section 2.04. Authentication and Delivery of Securities . . . . . . . . 13
Section 2.05. Execution of Securities . . . . . . . . . . . . . . . . . 16
Section 2.06. Certificate of Authentication . . . . . . . . . . . . . . 17
Section 2.07. Denomination and Date of Securities; Payments
of Interest . . . . . . . . . . . . . . . . . . . . . . . 17
Section 2.08. Registration, Transfer and Exchange . . . . . . . . . . . 18
Section 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.10. Cancellation of Securities; Destruction
Thereof . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 2.11. Temporary Securities . . . . . . . . . . . . . . . . . . . 23
ARTICLE 3
Covenants of the Issuer
Section 3.01. Payment of Principal and Interest . . . . . . . . . . . . 24
Section 3.02. Offices for Payments, etc . . . . . . . . . . . . . . . . 25
Section 3.03. Appointment to Fill a Vacancy in Office of
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.04. Paying Agents . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.05. Written Statement to Trustee . . . . . . . . . . . . . . . 27
Section 3.06. Luxembourg Publications . . . . . . . . . . . . . . . . . 28
ARTICLE 4
Securityholders Lists and Reports by the Issuer and the
Trustee
Section 4.01. Issuer to Furnish Trustee Information as to
Names and Addresses of Securityholders . . . . . . . . . . 28
Section 4.02. Preservation and Disclosure of Securityholders
Lists . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 4.03. Reports by the Issuer . . . . . . . . . . . . . . . . . . 28
Section 4.04. Reports by the Trustee . . . . . . . . . . . . . . . . . . 29
ARTICLE 5
Remedies of the Trustee and Securityholders in the Event
of Default
Section 5.01. Event of Default Defined; Acceleration of
Maturity; Waiver of Default . . . . . . . . . . . . . . . 29
Section 5.02. Collection of Indebtedness by Trustee; Trustee
May Prove Debt . . . . . . . . . . . . . . . . . . . . . . 33
Section 5.03. Applications of Proceeds . . . . . . . . . . . . . . . . . 36
Section 5.04. Suits for Enforcement . . . . . . . . . . . . . . . . . . 37
Section 5.05. Restoration of Rights on Abandonment of
Proceedings . . . . . . . . . . . . . . . . . . . . . . . 37
Section 5.06. Limitations on Suits by Securityholder . . . . . . . . . . 37
Section 5.07. Unconditional Right of Securityholders to
Institute Certain Suits . . . . . . . . . . . . . . . . . 38
Section 5.08. Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default; Restoration of
Rights and Remedies . . . . . . . . . . . . . . . . . . . 38
Section 5.09. Control by Holders of Securities . . . . . . . . . . . . . 39
Section 5.10. Waiver of Past Defaults . . . . . . . . . . . . . . . . . 39
Section 5.11. Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances . . . . . . . . . . . . 40
Section 5.12. Right of Court to Require Filing of Undertaking
to Pay Costs . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE 6
Concerning the Trustee
Section 6.01. Duties and Responsibilities of the Trustee;
During Default; Prior to Default . . . . . . . . . . . . . 41
Section 6.02. Certain Rights of the Trustee . . . . . . . . . . . . . . 43
Section 6.03. Trustee Not Responsible for Recitals,
Disposition of Securities or Application of
Proceeds Thereof . . . . . . . . . . . . . . . . . . . . . 44
Section 6.04. Trustee and Agents May Hold Securities or
Coupons; Collections, etc . . . . . . . . . . . . . . . . 44
Section 6.05. Moneys Held by Trustee . . . . . . . . . . . . . . . . . . 44
Section 6.06. Compensation and Indemnification of Trustee and
Its Prior Claim . . . . . . . . . . . . . . . . . . . . . 45
Section 6.07. Right of Trustee to Rely on Officer's
Certificate, etc . . . . . . . . . . . . . . . . . . . . . 45
Section 6.08. Indentures Not Creating Potential Conflicting
Interests for the Trustee . . . . . . . . . . . . . . . . 45
Section 6.09. Persons Eligible for Appointment as Trustee . . . . . . . 46
Section 6.10. Resignation and Removal; Appointment of
Successor Trustee . . . . . . . . . . . . . . . . . . . . 46
Section 6.11. Acceptance of Appointment by Successor Trustee . . . . . . 48
Section 6.12. Merger, Conversion, Consolidation or Succession
to Business of Trustee . . . . . . . . . . . . . . . . . . 49
Section 6.13. Preferential Collection of Claims Against the
Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.14. Appointment of Authenticating Agent . . . . . . . . . . . 50
ARTICLE 7
Concerning the Securityholders
Section 7.01. Evidence of Action Taken by Securityholders . . . . . . . 51
Section 7.02. Proof of Execution of Instruments and of
Holding of Securities . . . . . . . . . . . . . . . . . . 51
Section 7.03. Holders to Be Treated as Owners . . . . . . . . . . . . . 53
Section 7.04. Securities Owned by Issuer Deemed Not
Outstanding . . . . . . . . . . . . . . . . . . . . . . . 53
Section 7.05. Right of Revocation of Action Taken . . . . . . . . . . . 54
ARTICLE 8
Supplemental Indentures
Section 8.01. Supplemental Indentures Without Consent of
Securityholders . . . . . . . . . . . . . . . . . . . . . 54
Section 8.02. Supplemental Indentures With Consent of
Securityholders . . . . . . . . . . . . . . . . . . . . . 56
Section 8.03. Effect of Supplemental Indenture . . . . . . . . . . . . . 58
Section 8.04. Documents to Be Given to Trustee . . . . . . . . . . . . . 58
Section 8.05. Notation on Securities in Respect of
Supplemental Indentures . . . . . . . . . . . . . . . . . 58
Section 8.06. Subordination Unimpaired . . . . . . . . . . . . . . . . . 58
ARTICLE 9
Consolidation, Merger, Sale or Conveyance
Section 9.01. Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain
Conditions . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 9.02. Successor Corporation Substituted . . . . . . . . . . . . 59
Section 9.03. Opinion of Counsel Delivered to Trustee . . . . . . . . . 60
ARTICLE 10
Satisfaction and Discharge of Indenture; Unclaimed Moneys
Section 10.01. Satisfaction and Discharge of Indenture . . . . . . . . . 60
Section 10.02. Application by Trustee of Funds Deposited for
Payment of Securities . . . . . . . . . . . . . . . . . . 66
Section 10.03. Repayment of Moneys Held by Paying Agent . . . . . . . . . 66
Section 10.04. Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years . . . . . . . . . . . . . . 66
Section 10.05. Indemnity for U.S. Government Obligations . . . . . . . . 67
ARTICLE 11
Miscellaneous Provisions
Section 11.01. Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual
Liability . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 11.02. Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities and Coupons . . . . . . 67
Section 11.03. Successors and Assigns of Issuer Bound by
Indenture . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 11.04. Notices and Demands on Issuer, Trustee and
Holders of Securities and Coupons . . . . . . . . . . . . 68
Section 11.05. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein . . . . . . . . . . . . 69
Section 11.06. Payments Due on Saturdays, Sundays and
Holidays . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 11.07. Conflict of Any Provision of Indenture with
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . 70
Section 11.08. New York Law to Govern . . . . . . . . . . . . . . . . . . 70
Section 11.09. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 70
Section 11.10. Effect of Headings . . . . . . . . . . . . . . . . . . . . 70
Section 11.11. Securities in a Foreign Currency or in ECU . . . . . . . . 70
Section 11.12. Judgment Currency . . . . . . . . . . . . . . . . . . . . 71
ARTICLE 12
Redemption of Securities and Sinking Funds
Section 12.01. Applicability of Article . . . . . . . . . . . . . . . . . 72
Section 12.02. Notice of Redemption; Partial Redemptions . . . . . . . . 72
Section 12.03. Payment of Securities Called for Redemption . . . . . . . 74
Section 12.04. Exclusion of Certain Securities from
Eligibility for Selection for Redemption . . . . . . . . . 75
Section 12.05. Mandatory and Optional Sinking Funds . . . . . . . . . . . 75
ARTICLE 13
Subordination
Section 13.01. Securities and Coupons Subordinated to Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 78
Section 13.02. Disputes with Holders of Certain Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 80
Section 13.03. Subrogation . . . . . . . . . . . . . . . . . . . . . . . 80
Section 13.04. Obligation of Issuer Unconditional . . . . . . . . . . . . 81
Section 13.05. Payments on Securities and Coupons Permitted . . . . . . . 81
Section 13.06. Effectuation of Subordination by Trustee . . . . . . . . . 81
Section 13.07. Knowledge of Trustee . . . . . . . . . . . . . . . . . . . 82
Section 13.08. Trustee May Hold Senior Indebtedness . . . . . . . . . . . 82
Section 13.09. Rights of Holders of Senior Indebtedness Not
Impaired . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 13.10. Article Applicable to Paying Agents . . . . . . . . . . . 82
Section 13.11. Trustee; Compensation Not Prejudiced . . . . . . . . . . . 83
THIS INDENTURE, dated as of ( ), 1998 between MORGAN STANLEY, DEAN
WITTER, DISCOVER & CO., a Delaware corporation (the "ISSUER"), and THE BANK
OF NEW YORK, as trustee (the "TRUSTEE"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time of
its junior subordinated unsecured debentures, notes or other evidences of
indebtedness to be issued in one or more series (the "SECURITIES") up to such
principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication,
delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Issuer and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective holders from time
to time of the Securities and of the coupons, if any, appertaining thereto as
follows:
ARTICLE 1
Definitions
Section 1.01 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this
Section. All other terms used in this Indenture that are defined in the Trust
Indenture Act of 1939 or the definitions of which in the Securities Act of
1933 are referred to in the Trust Indenture Act of 1939, including terms
defined therein by reference to the Securities Act of 1933 (except as herein
otherwise expressly provided or unless the context otherwise requires), shall
have the meanings assigned to such terms in said Trust Indenture Act and in
said Securities Act as in force at the date of this Indenture. All accounting
terms used herein and not expressly defined shall have the meanings assigned
to such terms in accordance with generally accepted accounting principles,
and the term "generally accepted accounting principles" means such accounting
principles as are generally accepted at the time of any computation. 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. The terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular.
"ADDITIONAL INTEREST" means compounded interest arising on any deferred
interest payments, as defined in any series of Securities.
"ADDITIONAL SUMS" has the meaning specified in Section 2.03(q) of this
Indenture.
"AFFILIATE" has the same meaning as given to that term in Rule 405 of
the Securities Act of 1933 or any successor rule thereunder.
"AUTHENTICATING AGENT" shall have the meaning set forth in Section 6.14.
"AUTHORIZED NEWSPAPER" means a newspaper (which, in the case of The City
of New York, will, if practicable, be The Wall Street Journal (Eastern
Edition), in the case of the United Kingdom, will, if practicable, be the
Financial Times (London Edition) and, in the case of Luxembourg, will, if
practicable, be the Luxemburger Wort) published in an official language of
the country of publication customarily published at least once a day for at
least five days in each calendar week and of general circulation in The City
of New York, the United Kingdom or in Luxembourg, as applicable. If it shall
be impractical in the opinion of the Trustee to make any publication of any
notice required hereby in an Authorized Newspaper, any publication or other
notice in lieu thereof which is made or given with the approval of the
Trustee shall constitute a sufficient publication of such notice.
"BOARD OF DIRECTORS" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"BOARD RESOLUTION" means a copy of one or more resolutions, certified by
the secretary or an assistant secretary of the Issuer to have been duly
adopted or consented to by the Board of Directors and to be in full force and
effect, and delivered to the Trustee.
"BUSINESS DAY" means, with respect to any Security, a day that in the
city (or in any of the cities, if more than one) in which amounts are
payable, as specified in the form of such Security, is not a day on which
banking institutions are authorized or required by law or regulation to
close.
"CAPITAL SECURITIES" means, with respect to an MSDW Capital Trust, the
undivided beneficial interests in the assets of such trust that rank pari
passu with the Common Securities issued by such trust; provided, that upon
the occurrence of an Event of Default with respect to the Securities held by
such trust, the rights of holders of such Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of holders of such Capital
Securities.
"CAPITAL SECURITIES GUARANTEE" means, with respect to an MSDW Capital
Trust, any Guarantee that the Guarantor enters into with The Bank of New York
or any other Person that operates directly or indirectly for the benefit of
holders of the Capital Securities of such trust.
"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 and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
"COMMON SECURITIES" means, with respect to an MSDW Capital Trust, the
undivided beneficial interests in the assets of such trust that rank pari
passu with the Capital Securities issued by such trust; provided, that upon
the occurrence of an Event of Default with respect to the Securities held by
such trust, the rights of holders of such Common Securities to payment in
respect to distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of holders of such Capital
Securities.
"COMMON SECURITIES GUARANTEE" means, with respect to an MSDW Capital
Trust, any Guarantee that the Guarantor enters into with any Person that
operates directly or indirectly for the benefit of holders of the Common
Securities of such trust.
"COMPOSITE RATE" means, at any time, the rate of interest, per annum,
compounded semiannually, equal to the sum of the rates of interest borne by
the Securities of each series (as specified on the face of the Securities of
each series, provided, that, in the case of the Securities with variable
rates of interest, the interest rate to be used in calculating the Composite
Rate shall be the interest rate applicable to such Securities at the
beginning of the year in which the Composite Rate is being determined and,
provided, further, that, in the case of Securities which do not bear
interest, the interest rate to be used in calculating the Composite Rate
shall be a rate equal to the yield to maturity on such Securities, calculated
at the time of issuance of such Securities) multiplied, in the case of each
series of Securities, by the percentage of the aggregate principal amount of
the Securities of all series Outstanding represented by the Outstanding
Securities of such series. For the purposes of this calculation, the
aggregate principal amounts of Outstanding Securities that are denominated in
a foreign currency, shall be calculated in the manner set forth in Section
11.11
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located in (New York, New York).
"COUPON" means any interest coupon appertaining to a Security.
"COVENANT DEFEASANCE" shall have the meaning set forth in Section
10.01(c).
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities,
the Person designated as Depositary by the Issuer pursuant to Section 2.03
until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder, and if at any
time there is more than one such Person, "Depositary" as used with respect to
the Securities of any such series shall mean the Depositary with respect to
the Registered Global Securities of that series.
"DIRECT ACTION" means a legal proceeding instituted by a holder of the
Capital Securities of an MSDW Capital Trust directly against the Issuer for
the enforcement of payment to such holder of any amounts payable in respect
of the Securities held by such trust having a principal amount equal to the
aggregate liquidation amount of the Capital Securities held by such holder,
if an Event of Default has occurred and is continuing and such Event of
Default is attributable to the failure of the Issuer to pay any amounts
payable in respect of such Securities on the date such amounts are otherwise
payable (in accordance with the terms hereof and thereof).
"DOLLAR" means the coin or currency of the United States of America as
at the time of payment is legal tender for the payment of public and private
debts.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of European Communities.
"euro" means the currency of participating member states of the European
Union that adopt a single currency in accordance with the Treaty on European
Unity signed February 7, 1992.
"EVENT OF DEFAULT" means any event or condition specified as such in
Section 5.01.
"FOREIGN CURRENCY" mean the ECU, euro or any successor or similar
currency or any currency issued by the government of a country other than the
United States.
"GUARANTOR" means the Issuer in its capacity as guarantor under any
Trust Securities Guarantee.
"HOLDER", "HOLDER OF SECURITIES", "SECURITYHOLDER" or other similar
terms mean (a) in the case of any Registered Security, the person in whose
name such Security is registered in the security register kept by the Issuer
for that purpose in accordance with the terms hereof, and (b) in the case of
any Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"INDEBTEDNESS" shall have the meaning set forth in Section 5.01.
"INDENTURE" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular
series of Securities established as contemplated hereunder.
"INTEREST" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"ISSUER" means (except as otherwise provided in Article 6) Morgan
Stanley, Dean Witter, Discover & Co., a Delaware corporation and, subject to
Article 9, its successors and assigns.
"ISSUER ORDER" means a written statement, request or order of the Issuer
signed in its name by one of the following: the Chairman of the Board, the
President, the Chief Financial Officer, the Chief Strategic and
Administrative Officer, the Chief Legal Officer, the Treasurer, any Assistant
Treasurer or any other person authorized by the Board of Directors to execute
any such written statement, request or order.
"JUDGMENT CURRENCY" shall have the meaning set forth in Section 11.12.
"MSDW CAPITAL TRUST" means an MSDW Capital Trust, a Delaware statutory
business trust, or any permitted successor thereto, or any substantially
similar Delaware statutory business trust sponsored by the Issuer.
"OFFICER'S CERTIFICATE" means a certificate signed by any one of the
following: the Chairman of the Board, the President, the Chief Financial
Officer, the Chief Strategic and Administrative Officer, the Chief Legal
Officer, the Treasurer, any Assistant Treasurer or any other person
authorized by the Board of Directors to execute any such certificate and
delivered to the Trustee. Each such certificate shall comply with Section 314
of the Trust Indenture Act of 1939 and include the statements provided for in
Section 11.05.
"OPINION OF COUNSEL" means an opinion in writing signed by the Chief
Legal Officer of the Issuer, or by such other legal counsel who may be an
employee of or counsel to the Issuer. Each such opinion shall comply with
Section 314 of the Trust Indenture Act of 1939 and include the statements
provided for in Section 11.05.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly)
on registration of transfer, exchange or substitution.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.01.
"OUTSTANDING" (except as otherwise provided in Section 6.08), when used
with reference to Securities, shall, subject to the provisions of Section
7.04, mean, as of any particular time, all Securities authenticated and
delivered by the Trustee under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys or U.S. Government Obligations (as provided for in Section
10.01) in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Issuer) or shall have been
set aside, segregated and held in trust by the Issuer for the Holders of such
Securities (if the Issuer shall act as its own paying agent), provided that
if such Securities, or portions thereof, are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as herein
provided, or provision satisfactory to the Trustee shall have been made for
giving such notice; and
(c) Securities which shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.09 (except with respect to any such Security as to which
proof satisfactory to the Trustee is presented that such Security is held by
a person in whose hands such Security is a legal, valid and binding
obligation of the Issuer).
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.01.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Issuer or its agents upon the
issuance of such Securities.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PRINCIPAL" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"RECORD DATE" shall have the meaning set forth in Section 2.07.
"REGISTERED GLOBAL SECURITY", means a Security evidencing all or a part
of a series of Registered Securities, issued to the Depositary for such
series in accordance with Section 2.04, and bearing the legend prescribed in
Section 2.04.
"REGISTERED SECURITY" means any Security registered on the Security
register of the Issuer.
"REQUIRED CURRENCY" shall have the meaning set forth in Section 11.12.
"RESPONSIBLE OFFICER" when used with respect to the Trustee means the
chairman of the Board of Directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any
vice president, (whether or not designated by numbers or words added before
or after the title "vice president") the cashier, the secretary, the
treasurer, any trust officer, any assistant trust officer, any assistant vice
president, any assistant cashier, any assistant secretary, any assistant
treasurer, or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons
who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and
familiarity with the particular subject.
"SECURITY" or "SECURITIES" (except as otherwise provided in Section
6.08) has the meaning stated in the first recital of this Indenture, or, as
the case may be, Securities that have been authenticated and delivered under
this Indenture.
"SENIOR INDENTURE" means a Senior Indenture between Morgan Stanley (as
predecessor to the Issuer) and The Chase Manhattan Bank (formerly known as
Chemical Bank), as trustee, dated as of April 15, 1989, as supplemented by a
First Supplemental Senior Indenture dated as of May 15, 1991 and a Second
Supplemental Senior Indenture dated as of April 15, 1996 and by a Third
Supplemental Senior Indenture between the Issuer and The Chase Manhattan
Bank, as trustee, dated as of June 1, 1997, as the same may be amended from
time to time..
"SENIOR INDEBTEDNESS" means obligations with respect to securities
issued under the Senior Indenture or the Senior Subordinated Indenture and
any other obligations (other than non-recourse obligations, the Securities or
any other obligations specifically designated as being subordinate in right
of payment to Senior Indebtedness) of, or guaranteed or assumed by, the
Issuer for borrowed money or evidenced by bonds, debentures, notes or other
similar instruments, and amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligation.
"SENIOR SUBORDINATED INDENTURE" means a Subordinated Indenture between
Morgan Stanley (as predecessor to the Issuer) and The First National Bank of
Chicago, as trustee, dated as of April 15, 1989, as supplemented by a First
Supplemental Subordinated Indenture dated as of May 15, 1991 and a Second
Supplemental Subordinated Indenture dated as of April 15, 1996 and by a Third
Supplemental Subordinated Indenture between the Issuer and The First National
Bank of Chicago, as trustee, dated as of June 1, 1997, as the same may be
amended from time to time.
"TRUST AGREEMENT" means, with respect to an MSDW Capital Trust, the
Amended and Restated Trust Agreement of such trust.
"TRUST INDENTURE ACT OF 1939" (except as otherwise provided in Sections
8.01 and 8.02) means the Trust Indenture Act of 1939 as in force at the date
as of which this Indenture was originally executed.
"TRUSTEE" means the Person identified as "TRUSTEE" in the first
paragraph hereof and, subject to the provisions of Article 6, shall also
include any successor trustee. "TRUSTEE" shall also mean or include each
Person who is then a trustee hereunder and if at any time there is more than
one such Person, "TRUSTEE" as used with respect to the Securities of any
series shall mean the trustee with respect to the Securities of such series.
"TRUST SECURITIES" means, with respect to an MSDW Capital Trust, the
Common Securities and the Capital Securities issued by such trust.
"TRUST SECURITIES GUARANTEE" means, with respect to an MSDW Capital
Trust, the Common Securities Guarantee and the Capital Securities Guarantee
covering the Common Securities and the Capital Securities, respectively, of
such trust.
"UNREGISTERED SECURITY" means any Security other than a Registered
Security.
"U.S. GOVERNMENT OBLIGATIONS" shall have the meaning set forth in
Section 10.01(a).
"YIELD TO MATURITY" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series,
and calculated in accordance with accepted financial practice.
ARTICLE 2
Securities
Section 2.01 Forms Generally. The Securities of each series and the
Coupons, if any, to be attached thereto shall be substantially in such form
(not inconsistent with this Indenture) as shall be established by or pursuant
to one or more Board Resolutions (as set forth in a Board Resolution or, to
the extent established pursuant to rather than set forth in a Board
Resolution, an Officer's Certificate detailing such establishment) or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with any rules of any
securities exchange or to conform to general usage, all as may be determined
by the officers executing such Securities and Coupons, if any, as evidenced
by their execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and
Coupons, if any.
Section 2.02 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities referred to in the
within-mentioned Junior Subordinated Indenture.
--------------------------------------------
as Trustee
Dated: By:
------------- ----------------------------------------
Authorized Signatory
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Trustee's Certificate of
Authentication to be borne by the Securities of each such series shall be
substantially as follows:
"This is one of the Securities referred to in the
within-mentioned Junior Subordinated Indenture.
--------------------------------------------
as Trustee
Dated: By:
------------- ----------------------------------------
Authorized Signatory
Section 2.03 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and the Securities of
each such series shall rank equally and pari passu with the Securities of
each other series, but all Securities issued hereunder shall be subordinate
and junior in right of payment, to the extent and in the manner set forth in
Article 13, to all Senior Indebtedness of the Issuer. There shall be
established in or pursuant to one or more Board Resolutions (and, to the
extent established pursuant to rather than set forth in a Board Resolution,
in an Officer's Certificate detailing such establishment) or established in
one or more indentures supplemental hereto, prior to the initial issuance of
Securities of any series,
(a) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(b) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 2.08, 2.09, 2.11, 8.05 or 12.03)
(c) if other than Dollars, the coin or currency in which the Securities
of that series are denominated (including, but not limited to, any Foreign
Currency or ECU);
(d) the date or dates on which the principal of the Securities of the
series is payable and any provisions for the advancement of any such date;
(e) the rate or rates at which the Securities of the series shall bear
interest, if any, the rate or rates and extent to which Additional Interest,
if any, shall be payable in respect of any Securities of such series, the
date or dates from which such interest shall accrue, on which such interest
shall be payable and (in the case of Registered Securities) on which a record
shall be taken for the determination of Holders to whom interest is payable
and/or the method by which such rate or rates or date or dates shall be
determined;
(f) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.02), the place or places where the Securities of the series may be
presented for registration of transfer or exchange and the place or places
where notices and demands to or upon the Issuer in respect of the Securities
of the series may be made;
(g) any provisions relating to the deferral of interest payments on the
Securities of the series at the option of the Issuer or otherwise;
(h) the right, if any, of the Issuer to redeem Securities of the
series, in whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon which
Securities of the series may be so redeemed, pursuant to any sinking fund or
otherwise;
(i) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any mandatory redemption, sinking fund
or analogous provisions or at the option of a Holder thereof and the price or
prices at which, the period or periods within which and any terms and
conditions upon which Securities of the series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation;(j) any
securities exchange or quotation system on which the Securities of the series
may be listed or quoted, as applicable;
(k) if other than denominations of $25 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(l) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(m) if other than the coin or currency in which the Securities of that
series are denominated, the coin or currency in which payment of the
principal of or interest on the Securities of such series shall be payable;
(n) if the Securities of a series may be converted into or exchanged
for stock or other securities of the Issuer or other entities, the terms upon
which such series may be converted or exchanged, any specific terms relating
to the adjustment thereof and the period during which such Securities may be
so converted or exchanged;
(o) if the principal of or interest on the Securities of such series
are to be payable, at the election of the Issuer or a Holder thereof, in a
coin or currency other than that in which the Securities are denominated, the
period or periods within which, and the terms and conditions upon which, such
election may be made;
(p) if the amount of payments of principal of and interest on the
Securities of the series may be determined with reference to an index based
on a coin or currency other than that in which the Securities of the series
are denominated, the manner in which such amounts shall be determined;
(q) whether the Securities of the series will be issuable as Registered
Securities (and if so, whether such Securities will be issuable as Registered
Global Securities) or Unregistered Securities (with or without Coupons), or
any combination of the foregoing, any restrictions applicable to the offer,
sale or delivery of Unregistered Securities or the payment of interest
thereon and, if other than as provided in Section 2.08, the terms upon which
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(r) whether and under what circumstances the Issuer will pay Additional
Sums or any other additional amounts on the Securities of the series held by
a person who is not a U.S. person or held in an MSDW Capital Trust in respect
of any tax, assessment or governmental charge withheld or deducted and, if
so, whether the Issuer will have the option to redeem such Securities rather
than pay such additional sums;
(s) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates,
documents or conditions;
(t) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the
Securities of such series;
(u) any additions, modifications or deletions in the Events of Default
or covenants of the Issuer set forth herein with respect to the Securities of
such series; and
(v) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any, appertaining
thereto, shall be substantially identical, except in the case of Registered
Securities as to denomination and except as may otherwise be provided by or
pursuant to the Board Resolution or Officer's Certificate referred to above
or as set forth in any such indenture supplemental hereto. All Securities of
any one series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by
or pursuant to such Board Resolution, such Officer's Certificate or in any
such indenture supplemental hereto.
Section 2.04 Authentication and Delivery of Securities. The Issuer may
deliver Securities of any series having attached thereto appropriate Coupons,
if any, executed by the Issuer to the Trustee for authentication together
with the applicable documents referred to below in this Section, and the
Trustee shall thereupon manually authenticate and deliver such Securities to
or upon the order of the Issuer (contained in the Issuer Order referred to
below in this Section) or pursuant to such procedures acceptable to the
Trustee and to such recipients as may be specified from time to time by an
Issuer Order. The maturity date, original issue date, interest rate and any
other terms of the Securities of such series and Coupons, if any,
appertaining thereto shall be determined by or pursuant to such Issuer Order
and procedures. If provided for in such procedures, such Issuer Order may
authorize authentication and delivery pursuant to oral instructions from the
Issuer or its duly authorized agent, which instructions shall be promptly
confirmed in writing. In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive (in the case of
subparagraphs (b), (c) and (d) below only at or before the time of the first
request of the Issuer to the Trustee to authenticate Securities of such
series) and (subject to Section 6.01) shall be fully protected in relying
upon, unless and until such documents have been superceded or revoked:
(a) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities and Coupons, if any, are not to be
delivered to the Issuer, provided that, with respect to Securities of a
series subject to a Periodic Offering, (i) such Issuer Order may be delivered
by the Issuer to the Trustee prior to the delivery to the Trustee of such
Securities for authentication and delivery, (ii) the Trustee shall
authenticate and deliver Securities of such series for original issue from
time to time, in an aggregate principal amount not exceeding the aggregate
principal amount established for such series, pursuant to an Issuer Order or
pursuant to procedures acceptable to the Trustee as may be specified from
time to time by an Issuer Order, (iii) the maturity date or dates, original
issue date or dates, interest rate or rates and any other terms of Securities
of such series shall be determined by an Issuer Order or pursuant to such
procedures and (iv) if provided for in such procedures, such Issuer Order may
authorize authentication and delivery pursuant to oral or electronic
instructions from the Issuer or its duly authorized agent or agents, which
oral instructions shall be promptly confirmed in writing;
(b) any Board Resolution, Officer's Certificate and/or executed
supplemental indenture referred to in Sections 2.01 and 2.03 by or pursuant
to which the forms and terms of the Securities and Coupons, if any, were
established;
(c) an Officer's Certificate setting forth the form or forms and terms
of the Securities and Coupons, if any, stating that the form or forms and
terms of the Securities and Coupons, if any, have been established pursuant
to Sections 2.01 and 2.03 and comply with this Indenture, and covering such
other matters as the Trustee may reasonably request; and
(d) at the option of the Issuer, either an Opinion of Counsel, or a
letter addressed to the Trustee permitting it to rely on an Opinion of
Counsel, substantially to the effect that:
(i) the forms of the Securities and Coupons, if any, have been
duly authorized and established in conformity with the provisions
of this Indenture;
(ii) in the case of an underwritten offering, the terms of the
Securities have been duly authorized and established in conformity with
the provisions of this Indenture, and, in the case of an offering that
is not underwritten, certain terms of the Securities have been
established pursuant to a Board Resolution, an Officer's Certificate or
a supplemental indenture in accordance with this Indenture, and when
such other terms as are to be established pursuant to procedures set
forth in an Issuer Order shall have been established, all such terms
will have been duly authorized by the Issuer and will have been
established in conformity with the provisions of this Indenture;
(iii) when the Securities and Coupons, if any, have been
executed by the Issuer and authenticated by the Trustee in accordance
with the provisions of this Indenture and delivered to and duly paid for
by the purchasers thereof, they will have been duly issued under this
Indenture and will be valid and legally binding obligations of the
Issuer, enforceable in accordance with their respective terms, and will
be entitled to the benefits of this Indenture; and
(iv) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, the Securities and
Coupons, if any, will not contravene any provision of applicable law or
the certificate of incorporation or by-laws of the Issuer or any
agreement or other instrument binding upon the Issuer or any of its
subsidiaries that is material to the Issuer and its subsidiaries,
considered as one enterprise, or, to the best of such counsel's
knowledge, any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Issuer or any subsidiary,
and no consent, approval or authorization of any governmental body or
agency is required for the performance by the Issuer of its obligations
under the Securities and Coupons, if any, except such as are specified
and have been obtained and such as may be required by the securities or
blue sky laws of the various states in connection with the offer and
sale of the Securities and Coupons, if any.
In rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the State of New
York and the federal law of the United States, upon opinions of other counsel
(copies of which shall be delivered to the Trustee), who shall be counsel
reasonably satisfactory to the Trustee, in which case the opinion shall state
that such counsel believes he and the Trustee are entitled so to rely. Such
counsel may also state that, insofar as such opinion involves factual
matters, he has relied, to the extent he deems proper, upon certificates of
officers of the Issuer and its subsidiaries and certificates of public
officials.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the
Trustee to personal liability to existing Holders or would affect the
Trustee's own rights, duties or immunities under the Securities, this
Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.03 that the
Securities of a series are to be issued in the form of one or more Registered
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the Issuer Order with respect to such
series, authenticate and deliver one or more Registered Global Securities
that (i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of all of the Securities of such series issued and
not yet cancelled, (ii) shall be registered in the name of the Depositary for
such Registered Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security
may not be transferred except as a whole by the Depositary to the 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."
Each Depositary designated pursuant to Section 2.03 must, at the time of
its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934 and any other
applicable statute or regulation.
Section 2.05 Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf of the
Issuer by one of the following: the Chairman of the Board, the President, the
Chief Financial Officer, the Chief Strategic and Administrative Officer, the
Chief Legal Officer, the Treasurer, any Assistant Treasurer or any other
person authorized by the Board of Directors to execute Securities or, if
applicable, Coupons, which Securities or Coupons may, but need not, be
attested. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. Minor errors or defects in any such
reproduction of any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated and delivered
by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed
of by the Issuer, such Security or Coupon nevertheless may be authenticated
and delivered or disposed of as though the person who signed such Security or
Coupon had not ceased to be such officer of the Issuer; and any Security or
Coupon may be signed on behalf of the Issuer by such persons as, at the
actual date of the execution of such Security or Coupon, shall be the proper
officers of the Issuer, although at the date of the execution and delivery of
this Indenture any such person was not such an officer.
Section 2.06 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one
of its authorized officers, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. No Coupon shall be
entitled to the benefits of this Indenture or shall be valid and obligatory
for any purpose until the certificate of authentication on the Security to
which such Coupon appertains shall have been duly executed by the Trustee.
The execution of such certificate by the Trustee upon any Security executed
by the Issuer shall be conclusive evidence that the Security so authenticated
has been duly authenticated and delivered hereunder and that the Holder is
entitled to the benefits of this Indenture.
Section 2.07 Denomination and Date of Securities; Payments of Interest.
The Securities of each series shall be issuable as Registered Securities or
Unregistered Securities in denominations established as contemplated by
Section 2.03 or, with respect to the Registered Securities of any series, if
not so established, in denominations of $1,000 and any integral multiple
thereof. If denominations of Unregistered Securities of any series are not so
established, such Securities shall be issuable in denominations of $1,000 and
$5,000. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of
the Trustee, as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in the resolution or
resolutions of the Board of Directors of the Issuer referred to in Section
2.03. The Securities of each series shall bear interest, if any, from the
date, and such interest shall be payable on the dates, established as
contemplated by Section 2.03.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment
date, except if and to the extent the Issuer shall default in the payment of
the interest due on such interest payment date for such series, in which case
such defaulted interest shall be paid to the persons in whose names
Outstanding Registered Securities for such series are registered at the close
of business on a subsequent record date (which shall be not less than five
Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the
Holders of Registered Securities not less than 15 days preceding such
subsequent record date. The term "RECORD DATE" as used with respect to any
interest payment date (except a date for payment of defaulted interest) for
the Securities of any series shall mean the date specified as such in the
terms of the Registered Securities of such series established as contemplated
by Section 2.03, or, if no such date is so established, if such interest
payment date is the first day of a calendar month, the fifteenth day of the
next preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar month,
whether or not such record date is a Business Day.
Section 2.08 Registration, Transfer and Exchange. The Issuer will keep
at each office or agency to be maintained for the purpose as provided in
Section 3.02 for each series of Securities a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will provide
for the registration of Registered Securities of such series and the
registration of transfer of Registered Securities of such series. Such
register shall be in written form in the English language or in any other
form capable of being converted into such form within a reasonable time. At
all reasonable times such register or registers shall be open for inspection
by the Trustee.
Upon due presentation for registration of transfer of any Registered
Security of any series at any such office or agency to be maintained for the
purpose as provided in Section 3.02, the Issuer shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Registered Security or Registered Securities of the same series, maturity
date, interest rate and original issue date in authorized denominations for a
like aggregate principal amount.
Unregistered Securities (except for any temporary global Unregistered
Securities) and Coupons (except for Coupons attached to any temporary global
Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of any series
(other than a Registered Global Security, except as set forth below) may be
exchanged for a Registered Security or Registered Securities of such series
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Registered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section
3.02 and upon payment, if the Issuer shall so require, of the charges
hereinafter provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise specified pursuant to
Section 2.03, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series having
authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of
the Issuer that shall be maintained for such purpose in accordance with
Section 3.02, with, in the case of Unregistered Securities that have Coupons
attached, all unmatured Coupons and all matured Coupons in default thereto
appertaining, and upon payment, if the Issuer shall so require, of the
charges hereinafter provided. At the option of the Holder thereof, if
Unregistered Securities of any series, maturity date, interest rate and
original issue date are issued in more than one authorized denomination,
except as otherwise specified pursuant to Section 2.03, such Unregistered
Securities may be exchanged for Unregistered Securities of such series having
authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of
the Issuer that shall be maintained for such purpose in accordance with
Section 3.02 or as specified pursuant to Section 2.03, with, in the case of
Unregistered Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default thereto appertaining, and upon payment, if the
Issuer shall so require, of the charges hereinafter provided. Unless
otherwise specified pursuant to Section 2.03, Registered Securities of any
series may not be exchanged for Unregistered Securities of such series.
Whenever any Securities are so surrendered for exchange, the Issuer shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive. All Securities and
Coupons surrendered upon any exchange or transfer provided for in this
Indenture shall be promptly cancelled and disposed of by the Trustee and the
Trustee will deliver a certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee
duly executed by the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange
or registration of transfer of Securities. No service charge shall be made
for any such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing of notice of redemption of Securities of such series to be
redeemed or (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.08, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion
of the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or
by such Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a series
represented by one or more Registered Global Securities notifies the Issuer
that it is unwilling or unable to continue as Depositary for such Registered
Securities or if at any time the Depositary for such Registered Securities
shall no longer be eligible under Section 2.04, the Issuer shall appoint a
successor Depositary eligible under Section 2.04 with respect to such
Registered Securities. If a successor Depositary eligible under Section 2.04
for such Registered Securities is not appointed by the Issuer within 90 days
after the Issuer receives such notice or becomes aware of such ineligibility,
the Issuer's election pursuant to Section 2.03 that such Registered
Securities be represented by one or more Registered Global Securities shall
no longer be effective and the Issuer will execute, and the Trustee, upon
receipt of an Officer's Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive registered form without coupons, in
any authorized denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities representing
such Registered Securities in exchange for such Registered Global Security or
Securities.
The Issuer 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
Registered Global Securities shall no longer be represented by a Registered
Global Security or Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered form without
coupons, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of the Registered Global Security or Securities
representing such Registered Securities, in exchange for such Registered
Global Security or Securities.
If specified by the Issuer pursuant to Section 2.03 with respect to
Securities represented by a Registered Global Security, the Depositary for
such Registered Global Security may surrender such Registered Global Security
in exchange in whole or in part for Securities of the same series in
definitive registered form on such terms as are acceptable to the Issuer and
such Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(a) to the Person specified by such Depositary a new Registered
Security or Securities of the same series, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Registered Global
Security; and
(b) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Registered Global Security and the aggregate principal amount
of Registered Securities authenticated and delivered pursuant to clause (a)
above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without coupons, in authorized denominations, such
Registered Global Security shall be cancelled by the Trustee or an agent of
the Issuer or the Trustee. Securities in definitive registered form without
coupons issued in exchange for a Registered Global Security pursuant to this
Section 2.08 shall be registered in such names and in such authorized
denominations as the Depositary for such Registered Global Security, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee or
such agent shall deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Issuer, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon
such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Trustee or any agent of
the Issuer or the Trustee (any of which, other than the Issuer, shall rely on
an Officer's Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security if such exchange
would result in adverse Federal income tax consequences to the Issuer (such
as, for example, the inability of the Issuer to deduct from its income, as
computed for Federal income tax purposes, the interest payable on the
Unregistered Securities) under then applicable United States Federal income
tax laws.
Section 2.09 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security or any Coupon appertaining to
any Security shall become mutilated, defaced or be destroyed, lost or stolen,
the Issuer in its discretion may execute, and upon the written request of any
officer of the Issuer, the Trustee shall authenticate and deliver a new
Security of the same series, maturity date, interest rate and original issue
date, bearing a number or other distinguishing symbol not contemporaneously
outstanding, in exchange and substitution for the mutilated or defaced
Security, or in lieu of and in substitution for the Security so destroyed,
lost or stolen with Coupons corresponding to the Coupons appertaining to the
Securities so mutilated, defaced, destroyed, lost or stolen, or in exchange
or substitution for the Security to which such mutilated, defaced, destroyed,
lost or stolen Coupon appertained, with Coupons appertaining thereto
corresponding to the Coupons so mutilated, defaced, destroyed, lost or
stolen. In every case the applicant for a substitute Security or Coupon shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as may be required by them to indemnify
and defend and to save each of them harmless and, in every case of
destruction, loss or theft, evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the ownership
thereof and in the case of mutilation or defacement shall surrender the
Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee or its agent)
connected therewith. In case any Security or Coupon which has matured or is
about to mature or has been called for redemption in full shall become
mutilated or defaced or be destroyed, lost or stolen, the Issuer may instead
of issuing a substitute Security, pay or authorize the payment of the same or
the relevant Coupon (without surrender thereof except in the case of a
mutilated or defaced Security or Coupon), if the applicant for such payment
shall furnish to the Issuer and to the Trustee and any agent of the Issuer or
the Trustee such security or indemnity as any of them may require to save
each of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Issuer and the Trustee and any agent of
the Issuer or the Trustee evidence to their satisfaction of the destruction,
loss or theft of such Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security or
Coupon is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Security or Coupon shall be at any time enforceable by anyone and
shall be entitled to all the benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities or Coupons of such series
duly authenticated and delivered hereunder. All Securities and Coupons shall
be held and owned upon the express condition that, to the extent permitted by
law, the foregoing provisions are exclusive with respect to the replacement
or payment of mutilated, defaced or destroyed, lost or stolen Securities and
Coupons and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
Section 2.10 Cancellation of Securities; Destruction Thereof. All
Securities and Coupons surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a
sinking or analogous fund, if surrendered to the Issuer or any agent of the
Issuer or the Trustee or any agent of the Trustee, shall be delivered to the
Trustee or its agent for cancellation or, if surrendered to the Trustee,
shall be cancelled by it; and no Securities or Coupons shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee or its agent shall return such cancelled Securities
and Coupons held by it to the Issuer. If the Issuer or its agent shall
acquire any of the Securities or Coupons, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such
Securities or Coupons unless and until the same are delivered to the Trustee
or its agent for cancellation.
Section 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without coupons, or as Unregistered
Securities with or without coupons attached thereto, of any authorized
denomination, and substantially in the form of the definitive Securities of
such series but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Issuer
with the concurrence of the Trustee as evidenced by the execution and
authentication thereof. Temporary Securities may contain such references to
any provisions of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Issuer and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without unreasonable delay the Issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Registered Securities of such series may be surrendered
in exchange therefor without charge at each office or agency to be maintained
by the Issuer for that purpose pursuant to Section 3.02 and, in the case of
Unregistered Securities, at any agency maintained by the Issuer for such
purpose as specified pursuant to Section 2.03, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities of such
series an equal aggregate principal amount of definitive Securities of the
same series having authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. Until so
exchanged, the temporary Securities of any series shall be entitled to the
same benefits under this Indenture as definitive Securities of such series,
unless otherwise established pursuant to Section 2.03. The provisions of this
Section are subject to any restrictions or limitations on the issue and
delivery of temporary Unregistered Securities of any series that may be
established pursuant to Section 2.03 (including any provision that
Unregistered Securities of such series initially be issued in the form of a
single global Unregistered Security to be delivered to a depositary or agency
located outside the United States and the procedures pursuant to which
definitive or global Unregistered Securities of such series would be issued
in exchange for such temporary global Unregistered Security).
ARTICLE 3
Covenants of the Issuer
Section 3.01 Payment of Principal and Interest. The Issuer covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series (together with any additional amounts payable
pursuant to the terms of such Securities) at the place or places, at the
respective times and in the manner provided in such Securities and in the
Coupons, if any, appertaining thereto and in this Indenture. The interest on
Securities with Coupons attached (together with any additional amounts
payable pursuant to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature. If any
temporary Unregistered Security provides that interest thereon may be paid
while such Security is in temporary form, the interest on any such temporary
Unregistered Security (together with any additional amounts payable pursuant
to the terms of such Security) shall be paid, as to the installments of
interest evidenced by Coupons attached thereto, if any, only upon
presentation and surrender thereof, and, as to the other installments of
interest, if any, only upon presentation of such Securities for notation
thereon of the payment of such interest, in each case subject to any
restrictions that may be established pursuant to Section 2.03. The interest
on Registered Securities (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only to or upon
the written order of the Holders thereof and, at the option of the Issuer,
may be paid by wire transfer or by mailing checks for such interest payable
to or upon the written order of such Holders at their last addresses as they
appear on the registry books of the Issuer; provided, however, that, if the
Securities of such series are held by an MSDW Capital Trust or a trustee of
such trust and a holder of a Capital Security of such trust brings a
successful Direct Action with respect to any interest payable on such
Securities, such interest will be payable directly to such holder. In such
event, the Issuer will have the right to set-off such payment to such holder
against its obligation to pay interest on such Securities to such MSDW
Capital Trust.
Section 3.02 Offices for Payments, etc. So long as any Registered
Securities are authorized for issuance pursuant to this Indenture or are
outstanding hereunder, the Issuer will maintain in the Borough of Manhattan,
The City of New York, an office or agency where the Registered Securities of
each series may be presented for payment, where the Securities of each series
may be presented for exchange as is provided in this Indenture and, if
applicable, pursuant to Section 2.03 and where the Registered Securities of
each series may be presented for registration of transfer as in this
Indenture provided.
The Issuer will maintain one or more offices or agencies in a city or
cities located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange on
which the Securities of such series are listed) where the Unregistered
Securities, if any, of each series and Coupons, if any, appertaining thereto
may be presented for payment. No payment on any Unregistered Security or
Coupon will be made upon presentation of such Unregistered Security or Coupon
at an agency of the Issuer within the United States nor will any payment be
made by transfer to an account in, or by mail to an address in, the United
States unless pursuant to applicable United States laws and regulations then
in effect such payment can be made without adverse tax consequences to the
Issuer. Notwithstanding the foregoing, payments in Dollars of Unregistered
Securities of any series and Coupons appertaining thereto which are payable
in Dollars may be made at an agency of the Issuer maintained in the Borough
of Manhattan, The City of New York if such payment in Dollars at each agency
maintained by the Issuer outside the United States for payment on such
Unregistered Securities is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City of New
York, an office or agency where notices and demands to or upon the Issuer in
respect of the Securities of any series, the Coupons appertaining thereto or
this Indenture may be served.
The Issuer will give to the Trustee written notice of the location of
each such office or agency and of any change of location thereof. In case the
Issuer shall fail to maintain any agency required by this Section to be
located in the Borough of Manhattan, The City of New York, or shall fail to
give such notice of the location or of any change in the location of any of
the above agencies, presentations and demands may be made and notices may be
served at the Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more additional
offices or agencies where the Securities of a series and any Coupons
appertaining thereto may be presented for payment, where the Securities of
that series may be presented for exchange as provided in this Indenture and
pursuant to Section 2.03 and where the Registered Securities of that series
may be presented for registration of transfer as in this Indenture provided,
and the Issuer may from time to time rescind any such designation, as the
Issuer may deem desirable or expedient; provided, however, that no such
designation or rescission shall in any manner relieve the Issuer of its
obligation to maintain the agencies provided for in this Section. The Issuer
will give to the Trustee prompt written notice of any such designation or
rescission thereof.
Section 3.03 Appointment to Fill a Vacancy in Office of Trustee. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee with respect to each series of
Securities hereunder.
Section 3.04 Paying Agents. Whenever the Issuer shall appoint a paying
agent other than the Trustee with respect to the Securities of any series, it
will cause such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other obligor
on the Securities of such series) in trust for the benefit of the Holders of
the Securities of such series, or Coupons appertaining thereto, if any, or of
the Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities of such series) to make any
payment of the principal of or interest on the Securities of such series when
the same shall be due and payable, and
(c) that it will pay any such sums so held in trust by it to the
Trustee upon the Trustee's written request at any time during the continuance
of the failure referred to in clause (b) above.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a
sum sufficient to pay such principal or interest so becoming due, and (unless
such paying agent is the Trustee) the Issuer will promptly notify the Trustee
of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside,
segregate and hold in trust for the benefit of the Holders of the Securities
of such series or the Coupons appertaining thereto a sum sufficient to pay
such principal or interest so becoming due. The Issuer will promptly notify
the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, but subject to
Section 10.01 and to the terms of any series of Securities, the Issuer may at
any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any
other reason, pay or cause to be paid to the Trustee all sums held in trust
for any such series by the Issuer or any paying agent hereunder, as required
by this Section, such sums to be held by the Trustee upon the trusts herein
contained.
Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.03 and 11.04.
Section 3.05 Written Statement to Trustee. The Issuer will furnish to
the Trustee on or before March 31 in each year (beginning with March 31,
1998) a brief certificate (which need not comply with Section 11.05) from the
principal executive, financial or accounting officer of the Issuer stating
that in the course of the performance by the signer of his duties as an
officer of the Issuer he would normally have knowledge of any default or
non-compliance by the Issuer in the performance of any covenants or
conditions contained in this Indenture, stating whether or not he has
knowledge of any such default or non-compliance and, if so, specifying each
such default or non-compliance of which the signer has knowledge and the
nature thereof.
Section 3.06 Luxembourg Publications. In the event of the publication
of any notice pursuant to Sections 5.11, 6.08, 6.10(a), 6.11, 8.02, 10.04,
12.02 or 12.05, the party making such publication in the Borough of
Manhattan, The City of New York and London shall also, to the extent that
notice is required to be given to Holders of Securities of any series by
applicable Luxembourg law or stock exchange regulation, as evidenced by an
Officer's Certificate delivered to such party, make a similar publication in
Luxembourg.
ARTICLE 4
Securityholders Lists and Reports by the Issuer and the Trustee
Section 4.01 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. If and so long as the Trustee shall not be the
Security registrar for the Securities of any series, the Issuer and any other
obligor on the Securities will furnish or cause to be furnished to the
Trustee a list in such form as the Trustee may reasonably require of the
names and addresses of the Holders of the Registered Securities of such
series pursuant to Section 312 of the Trust Indenture Act of 1939 (a)
semi-annually not more than 15 days after each record date for the payment of
interest on such Registered Securities, as hereinabove specified, as of such
record date and on dates to be determined pursuant to Section 2.03 for
non-interest bearing Registered Securities in each year, and (b) at such
other times as the Trustee may request in writing, within thirty days after
receipt by the Issuer of any such request as of a date not more than 15 days
prior to the time such information is furnished.
Section 4.02 Preservation and Disclosure of Securityholders Lists.
(This Section intentionally left blank.)
Section 4.03 Reports by the Issuer. The Issuer covenants to file with
the Trustee, within 15 days after the Issuer is required to file the same
with the Commission, copies of the annual reports and of the information,
documents, and other reports that the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 or pursuant to Section 314 of the Trust Indenture Act of 1939.
Section 4.04 Reports by the Trustee. Any Trustee's report required
under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted
on or before May 15 in each year beginning May 15, 1998, as provided in
Section 313(c) of the Trust Indenture Act of 1939, so long as any Securities
are Outstanding hereunder, and shall be dated as of a date convenient to the
Trustee no more than 60 days prior thereto.
ARTICLE 5
Remedies of the Trustee and Securityholders in the
Event of Default
Section 5.01 Event of Default Defined; Acceleration of Maturity; Waiver
of Default. "EVENT OF DEFAULT" with respect to Securities of any series
wherever used herein, means each one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(a) default in the payment of any instalment of interest upon any of
the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; provided,
however, that a valid extension of an interest payment period by the Issuer
in accordance with the terms of Securities of a series issued hereunder shall
not constitute a default in the payment of interest for this purpose; or
(b) default in the payment of all or any part of the principal on any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon any redemption, by declaration or otherwise;
or
(c) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in the
Securities of such series (other than a covenant or warranty in respect of
the Securities of such series a default in the performance or breach of which
is elsewhere in this Section specifically dealt with) or in this Indenture
and continued for a period of 60 days after the date on which written notice
specifying such failure, stating that such notice is a "NOTICE OF DEFAULT"
hereunder and demanding that the Issuer remedy the same, shall have been
given by registered or certified mail, return receipt requested, to the
Issuer by the Trustee, or to the Issuer and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Outstanding Securities of all
series affected thereby and, if the Securities of such series are held by an
MSDW Capital Trust or a trustee of such trust and should the Trustee or such
Holders of the Outstanding Securities fail to give such notice, the holders
of at least 25% in aggregate liquidation amount of the outstanding Capital
Securities of such trust shall have the right to give such notice; or
(d) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Issuer in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Issuer or for any substantial part
of its property or ordering the winding up or liquidation of its affairs, and
such decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(e) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under any
such law, or consent to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official)
of the Issuer or for any substantial part of its property, or make any
general assignment for the benefit of creditors; or
(f) failure by the Issuer to make any payment at maturity, including
any applicable grace period, in respect of indebtedness, which term as used
herein means obligations (other than the Securities of such series or
non-recourse obligations) of, or guaranteed or assumed by, the Issuer for
borrowed money or evidenced by bonds, debentures, notes or other similar
instruments ( Indebtedness") in an amount in excess of $10,000,000 or the
equivalent thereof in any other currency or composite currency and such
failure shall have continued for a period of thirty days after written notice
thereof shall have been given by registered or certified mail, return receipt
requested, to the Issuer by the Trustee, or to the Issuer and the Trustee by
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities (treated as one class) and, if the Securities of such
series are held by an MSDW Capital Trust or a trustee of such trust and
should the Trustee or such Holders of the Outstanding Securities fail to give
such notice, the holders of at least 25% in aggregate liquidation amount of
the outstanding Capital Securities of such trust shall have the right to give
such notice; or
(g) a default with respect to any Indebtedness, which default results
in the acceleration of Indebtedness in an amount in excess of $10,000,000 or
the equivalent thereof in any other currency or composite currency without
such Indebtedness having been discharged or such acceleration having been
cured, waived, rescinded or annulled for a period of thirty days after
written notice thereof shall have been given by registered or certified mail,
return receipt requested, to the Issuer by the Trustee, or to the Issuer and
the Trustee by the Holders of not less than 25% in aggregate principal amount
of the Outstanding Securities (treated as one class) and, if the Securities
of such series are held by an MSDW Capital Trust or a trustee of such trust
and should the Trustee or such Holders of the Outstanding Securities fail to
give such notice, the holders of at least 25% in aggregate liquidation amount
of the outstanding Capital Securities of such trust shall have such right; or
(h) any other Event of Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of Security
for such series;
provided that if any such failure, default or acceleration referred to in
clauses (f) or (g) above shall cease or be cured, waived, rescinded or
annulled, then the Event of Default hereunder by reason thereof shall be
deemed likewise to have been thereupon cured.
If an Event of Default described in clauses (a), (b), (c) or (h) (if the
Event of Default under clause (c) or (h), as the case may be, is with respect
to less than all series of Securities then Outstanding) occurs and is
continuing, then, and in each and every such case, except for any series of
Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of each such affected series then Outstanding
hereunder (voting as a single class) or, if the Securities of such series
are held by an MSDW Capital Trust or a trustee of such trust and should the
Trustee or such Holders of the Outstanding Securities fail to make the
declaration referred to below, the holders of at least 25% in aggregate
liquidation amount of the outstanding Capital Securities of such trust
(voting as a separate class), by notice in writing to the Issuer (and to the
Trustee if given by Securityholders or the holders of Capital Securities),
may declare the entire principal (or, if the Securities of any such affected
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all Securities of
all such affected series or of such series held by an MSDW Capital Trust, as
the case may be, and the interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration, the same shall become
immediately due and payable. If an Event of Default described in clause (c)
or (h) (if the Event of Default under clause (c) or (h), as the case may be,
is with respect to all series of Securities then Outstanding), (d), (e), (f)
or (g) occurs and is continuing, then and in each and every such case, unless
the principal of all the Securities shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of all the Securities then Outstanding hereunder (treated as
one he Securities of any such series are held by an MSDW Capital Trust or a
trustee of such trust and should the Trustee or such Holders of the
Outstanding Securities fail to make the declaration referred to below, the
Holders of at least 25% in aggregate liquidation amount of the outstanding
Capital Securities of such trust (treated as a separate class), by notice in
writing to the Issuer (and to the Trustee if given by Securityholders or the
holders of Capital Securities), may declare the entire principal (or, if any
Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities
then Outstanding or of such series held by an MSDW Capital Trust, as the case
may be, and interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due and payable.
The foregoing provisions, however, are subject to the condition that if,
at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as
the case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the Issuer shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured instalments of interest
upon all the Securities of each such series (or of all the Securities, as the
case may be) and the principal of any and all Securities of each such series
(or of all the Securities, as the case may be) which shall have become due
otherwise than by acceleration (with interest upon such principal and, to the
extent that payment of such interest is enforceable under applicable law, on
overdue instalments of interest, at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in the Securities of such series (or at the respective rates of
interest or Yields to Maturity of all the Securities, as the case may be) to
the date of such payment or deposit) and such amount as shall be sufficient
to cover reasonable compensation to the Trustee and each predecessor Trustee,
its agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith, and if any and all Events of
Default under the Indenture, other than the non-payment of the principal of
Securities which shall have become due by acceleration, shall have been
cured, waived or otherwise remedied as provided herein -- then and in every
such case the Holders of a majority in aggregate principal amount of all the
Securities of each such series or of all the Securities t each case voting as
a single class (except that each such series of Securities held by an MSDW
Capital Trust shall vote as a separate class), by written notice to the
Issuer and to the Trustee, may waive all defaults with respect to each such
series (or with respect to all the Securities, as the case may be) and
rescind and annul such declaration and its consequences, but no such waiver
or rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon; provided however, that
if the Securities of such series are held by an MSDW Capital Trust or a
trustee of such trust, (i) such waiver or rescission and annulment shall not
be effective until the holders of a majority in aggregate liquidation amount
of the Capital Securities of such trust shall have consented to such waiver
or rescission and annulment and (ii) should the Holders of the Securities of
such series fail to waive such defaults and rescind and annul such
declaration and its consequences, the holders of a majority in aggregate
liquidation amount of the Capital Securities of such trust shall have such
right.
If the Securities of a series are held by an MSDW Capital Trust or a
trustee of such trust and an Event of Default has occurred and is continuing
and such Event of Default is attributable to the failure of the Issuer to pay
any amounts payable in respect of such Securities on the date such amounts
are otherwise payable, a holder of Capital Securities of such trust may
institute a Direct Action. If the Issuer makes any payment to a holder of
such Capital Securities as a result of a Direct Action, the Issuer will have
the right to set-off any such payment against its obligation to make any
corresponding payment to such MSDW Capital Trust on such Securities.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities
shall be deemed, for all purposes hereunder, to be such portion of the
principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall
be due and payable as a result of such acceleration, together with interest,
if any, thereon and all other amounts owing thereunder, shall constitute
payment in full of such Original Issue Discount Securities.
Section 5.02 Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Issuer covenants that (a) in case default shall be made in the
payment of any instalment of interest on any of the Securities of any series
when such interest shall have become due and payable, and such default shall
have continued for a period of 30 days or (b) in case default shall be made
in the payment of all or any part of the principal of any of the Securities
of any series when the same shall have become due and payable, whether upon
maturity of the Securities of such series or upon any redemption or by
declaration or otherwise -- then upon demand of the Trustee, the Issuer will
pay to the Trustee for the benefit of the Holders of the Securities of such
series the whole amount that then shall have become due and payable on all
Securities of such series, and such Coupons, for principal or interest, as
the case may be (with interest to the date of such payment upon the overdue
principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue instalments of interest at the same rate as
the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series); and in
addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including reasonable compensation to the
Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee except as a result of its negligence
or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the Holders,
whether or not the Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon the Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon the Securities, wherever
situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or any
other obligor upon the Securities under Title 11 of the United States Code or
any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to
the Issuer or other obligor upon the Securities, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in such proceedings
or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the
Securities of any 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 reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee, except as a result of
negligence or bad faith) and of the Securityholders allowed in any judicial
proceedings relative to the Issuer or other obligor upon the Securities, or
to the creditors or property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities of any series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, or liquidator, custodian or other similar
official is hereby authorized by each of the Securityholders to make payments
to the Trustee, and, in the event that the Trustee shall consent to the
making of payments directly to the Securityholders, to pay to the Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Trustee, each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding except, as aforesaid, to vote
for the election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series or Coupons appertaining to such
Securities, may be enforced by the Trustee without the possession of any of
the Securities of such series or Coupons appertaining to such Securities or
the production thereof on any trial or other proceedings relative thereto,
and any such action or proceedings instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of judgment,
subject to the payment of the expenses, disbursements and compensation of the
Trustee, each predecessor Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Holders of the Securities or Coupons
appertaining to such Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Securities or Coupons appertaining to such Securities in
respect to which such action was taken and it shall not be necessary to make
any Holders of such Securities or Coupons appertaining to such Securities
parties to any such proceedings.
Section 5.03 Applications of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall, subject to
the subordination provisions hereof, be applied in the following order at the
date or dates fixed by the Trustee and, in case of the distribution of such
moneys on account of principal or interest, upon presentation of the several
Securities and Coupons appertaining to such Securities in respect of which
monies have been collected and stamping (or otherwise noting) thereon the
payment, or issuing Securities of such series in reduced principal amounts in
exchange for the presented Securities of like series if only partially paid,
or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of
such series in default in the order of the maturity of the instalments
of such interest, with interest (to the extent that such interest has
been collected by the Trustee) upon the overdue instalments of interest
at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in such
Securities, such payments to be made ratably to the persons entitled
thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall
be then due and payable, to the payment of the whole amount then owing
and unpaid upon all the Securities of such series for principal and
interest, with interest upon the overdue principal, and (to the extent
that such interest has been collected by the Trustee) upon overdue
instalments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in the Securities of such series; and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid
upon the Securities of such series, then to the payment of such
principal and interest or Yield to Maturity, without preference or
priority of principal over interest or Yield to Maturity, or of interest
or Yield to Maturity over principal, or of any instalment of interest
over any other instalment of interest, or of any Security of such series
over any other Security of such series, ratably to the aggregate of such
principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or
any other person lawfully entitled thereto.
Section 5.04 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture or to enforce any other legal
or equitable right vested in the Trustee by this Indenture or by law.
Section 5.05 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the Trustee, then and
in every such case the Issuer and the Trustee shall be restored respectively
to their former positions and rights hereunder, and all rights, remedies and
powers of the Issuer, the Trustee and the Securityholders and any rights of
holders of Capital Securities to institute a Direct Action shall continue as
though no such proceedings had been taken.
Section 5.06 Limitations on Suits by Securityholder. No Holder of any
Security of any series or of any Coupon appertaining thereto shall have any
right by virtue or by availing of any provision of this Indenture to
institute any action or proceeding at law or in equity or in bankruptcy or
otherwise upon or under or with respect to this Indenture, or for the
appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such Holder previously
shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
not less than 25% in aggregate principal amount of the Securities of each
affected series then Outstanding (treated as a single class) shall have made
written request upon the Trustee to institute such action or proceedings in
its own name as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action or proceeding and no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 5.09; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security or Coupon with
every other taker and Holder and the Trustee, that no one or more Holders of
Securities of any series or Coupons appertaining to such Securities shall
have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other such Holder of Securities or Coupons appertaining to such Securities,
or to obtain or seek to obtain priority over or preference to any other such
Holder or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all Holders
of Securities of the applicable series and Coupons appertaining to such
Securities. For the protection and enforcement of the provisions of this
Section, each and every Securityholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
Section 5.07 Unconditional Right of Securityholders to Institute
Certain Suits. Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any Holder of any Security or Coupon
to receive payment of the principal of and interest on such Security or
Coupon on or after the respective due dates expressed in such Security or
Coupon, or to institute suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such Holder; provided however, that if a series of Securities is
held by an MSDW Capital Trust, the Holder of such Securities shall not give
such consent without the consent of each holder of the Capital Securities of
such trust. Notwithstanding the foregoing, nothing in this Section shall be
deemed to impair the right of any holder of Capital Securities to institute a
Direct Action.
Section 5.08 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default; Restoration of Rights and Remedies. Except as provided in
Section 5.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities or Coupons or to holders of the
Capital Securities 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.
No delay or omission of the Trustee or of any Holder of Securities or
Coupons or of any holder of Capital Securities to exercise any right or power
accruing upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power or shall be construed to be a waiver of
any such Event of Default or an acquiescence therein; and, subject to Section
5.06, every power and remedy given by this Indenture or by law to the Trustee
or to the Holders of Securities or Coupons or to holders of Capital
Securities may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Holders of Securities or Coupons
or by the holders of Capital Securities.
If the Trustee, any Holder or any holder of Capital Securities 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, such Holder or such holder of
Capital Securities, then and in every case the Company, the Trustee, the
Holders and such holder of Capital Securities 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, the Holders and the holders of Capital Securities shall continue
as though no such proceeding had been instituted.
Section 5.09 Control by Holders of Securities. The Holders of a
majority in aggregate principal amount of the Securities of each series
affected (with all such series voting as a single class) at the time
Outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series by this Indenture; provided that such direction
shall not be otherwise than in accordance with law and the provisions of this
Indenture and provided further that (subject to the provisions of Section
6.01) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine that the
action or proceeding so directed may not lawfully be taken or if the Trustee
in good faith by its board of directors, the executive committee, or a trust
committee of directors or Responsible Officers of the Trustee shall determine
that the action or proceedings so directed would involve the Trustee in
personal liability or if the Trustee in good faith shall so determine that
the actions or forebearances specified in or pursuant to such direction would
be unduly prejudicial to the interests of Holders of the Securities of all
series so affected not joining in the giving of said direction, it being
understood that (subject to Section 6.01) the Trustee shall have no duty to
ascertain whether or not such actions or forebearances are unduly prejudicial
to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
Section 5.10 Waiver of Past Defaults. Prior to the acceleration of the
maturity of any Securities as provided in Section 5.01, the Holders of a
majority in aggregate principal amount of the Securities of all series at the
time Outstanding with respect to which an Event of Default shall have
occurred and be continuing (voting as a single class) may on behalf of the
Holders of all such Securities waive any past default or Event of Default
described in Section 5.01 and its consequences, except a default in respect
of a covenant or provision hereof which cannot be modified or amended without
the consent of the Holder of each Security affected; provided, that if the
Securities of such series are held by an MSDW Capital Trust or a trustee of
such trust, such waiver shall not be effective as to such Securities unless
the holders of at least a majority in aggregate liquidation amount of the
Capital Securities of such trust shall have consented to such waiver;
provided further, that if the consent of the Holder of each Outstanding
Security of such series is required, such waiver shall not be effective
unless each holder of the Capital Securities of such trust shall have
consented to such waiver. In the case of any such waiver, the Issuer, the
Trustee, the Holders of all such Securities and the holders of any Capital
Securities shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right
consequent thereon.
Section 5.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall, within ninety days after the
occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to that series known to the Trustee (a)
if any Unregistered Securities of that series are then Outstanding, to the
Holders thereof, by publication at least once in an Authorized Newspaper in
the Borough of Manhattan, The City of New York and at least once in an
Authorized Newspaper in London (and, if required by Section 3.06, at least
once in an Authorized Newspaper in Luxembourg) and (b) by mail to all Holders
of Registered Securities of such series and to such other Holders of
Securities as have, within two years preceding such transmission, filed their
names and addresses with the Trustee for that purpose, unless in each case
such defaults shall have been cured before the mailing or publication of such
notice (the term "DEFAULTS" for the purpose of this Section being hereby
defined to mean any event or condition which is, or with notice or lapse of
time or both would become, an Event of Default); provided that, except in the
case of default in the payment of the principal of or interest on any of the
Securities of such series, or in the payment of any sinking fund instalment
on 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 or trustees and/or Responsible Officers of the Trustee
in good faith determines that the withholding of such notice is in the
interests of the Securityholders of such series.
Section 5.12 Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security
or 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 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
Securityholder or group of Securityholders of any series holding in the
aggregate more than 10% in aggregate principal amount of the Securities of
such series, or, in the case of any suit relating to or arising under clause
(c) or (h) of Section 5.01 (if the suit relates to Securities of more than
one but less than all series), l0% in aggregate principal amount of
Securities then Outstanding and affected thereby, or in the case of any suit
relating to or arising under clause (c) or (h) (if the suit under clause (c)
or (h) relates to all the Securities then Outstanding), (d), (e), (f) or (g)
of Section 5.01, 10% in aggregate principal amount of all Securities then
Outstanding, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of or interest (including any
Additional Interest) on any Security on or after the due date expressed in
such Security or any date fixed for redemption.
ARTICLE 6
Concerning the Trustee
Section 6.01 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of a particular series and after
the curing or waiving of all Events of Default which may have occurred with
respect to such series, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of
Default with respect to the Securities of a series has occurred (which has
not been cured or waived) the Trustee shall exercise with respect to such
series of Securities 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.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act
or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such Events
of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of
the Holders pursuant to Section 5.09 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.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any
of its rights or powers, if there shall be reasonable ground for believing
that the repayment of such funds or adequate indemnity against such liability
is not reasonably assured to it.
The provisions of this Section 6.01 are in furtherance of and subject to
Section 315 of the Trust Indenture Act of 1939.
Section 6.02 Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 6.01:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer's Certificate or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security 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, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officer's Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a
copy thereof certified by the secretary or an assistant secretary of the
Issuer;
(c) the Trustee may consult with counsel and any written advice or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it hereunder
in good faith and in reliance thereon in accordance with such advice or
Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected then Outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of every such investigation
shall be paid by the Issuer or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent or
attorney appointed with due care by it hereunder.
Section 6.03 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities or Coupons. The Trustee shall not be accountable for the use or
application by the Issuer of any of the Securities or of the proceeds
thereof.
Section 6.04 Trustee and Agents May Hold Securities or Coupons;
Collections, etc. The Trustee or any agent of the Issuer or the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities or Coupons with the same rights it would have if it were not the
Trustee or such agent and may otherwise deal with the Issuer and receive,
collect, hold and retain collections from the Issuer with the same rights it
would have if it were not the Trustee or such agent.
Section 6.05 Moneys Held by Trustee. Subject to the provisions of
Section 11.04 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the
extent required by mandatory provisions of law. Neither the Trustee nor any
agent of the Issuer or the Trustee shall be under any liability for interest
on any moneys received by it hereunder.
Section 6.06 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, such compensation as the parties
shall agree in writing from time to time (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust) and the Issuer covenants and agrees to pay or reimburse the Trustee
and each predecessor Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad
faith. The Issuer also covenants to indemnify the Trustee and each
predecessor Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of this Indenture
or the trusts hereunder and its duties hereunder, including the costs and
expenses of defending itself against or investigating any claim of liability
in the premises. The obligations of the Issuer under this Section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay
or reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be a senior claim to that of the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the Holders of particular Securities
or Coupons, and the Securities are hereby subordinated to such senior claim.
Section 6.07 Right of Trustee to Rely on Officer's Certificate, etc.
Subject to Sections 6.01 and 6.02, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or suffering or
omitting any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence
or bad faith on the part of the Trustee, be deemed to be conclusively proved
and established by an Officer's Certificate delivered to the Trustee, and
such certificate, in the absence of negligence or bad faith on the part of
the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon the
faith thereof.
Section 6.08 Indentures Not Creating Potential Conflicting Interests
for the Trustee. The following indenture is hereby specifically described
for the purposes of Section 310(b)(1) of the Trust Indenture Act of 1939:
this Indenture with respect to the Securities of any other series.
Section 6.09 Persons Eligible for Appointment as Trustee. The Trustee
for each series of Securities hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America
or of any State or the District of Columbia having a combined capital and
surplus of at least $5,000,000, and which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or examination
by Federal, State or District of Columbia authority. Such corporation shall
have its principal place of business in the Borough of Manhattan, The City of
New York if there be such a corporation in such location willing to act upon
reasonable and customary terms and conditions. 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. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions
of this Section, the Trustee shall resign immediately in the manner and with
the effect specified in Section 6.10.
The provisions of this Section 6.09 are in furtherance of and subject to
Section 310(a) of the Trust Indenture Act of 1939.
Section 6.10 Resignation and Removal; Appointment of Successor Trustee
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign with respect to one or more or all series of Securities by giving
written notice of resignation to the Issuer and (i) if any Unregistered
Securities of a series affected are then Outstanding, by giving notice of
such resignation to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York, and
at least once in an Authorized Newspaper in London (and, if required by
Section 3.06, at least once in an Authorized Newspaper in Luxembourg), (ii)
if any Unregistered Securities of a series affected are then Outstanding, by
mailing notice of such resignation to the Holders thereof who have filed
their names and addresses with the Trustee within the two years preceding the
notice at such addresses as were so furnished to the Trustee and (iii) by
mailing notice of such resignation to the Holders of then Outstanding
Registered Securities of each series affected at their addresses as they
shall appear on the registry books. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or
trustees with respect to the applicable series by written instrument in
duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable series for at least six months may,
subject to the provisions of Section 5.12, on behalf of himself and all
others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939 with respect to any
series of Securities after written request therefor by the Issuer or by
any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.09 and Section 310(a) of the Trust Indenture Act
of 1939 and shall fail to resign after written request therefor by the
Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator 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, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such
series by written instrument, in duplicate, executed by order of the Board of
Directors of the Issuer, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee, or, subject to
the provisions of Section 315(e) of the Trust Indenture Act of 1939, any
Securityholder who has been a bona fide Holder of a Security or Securities of
such series for at least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee with
respect to such series. Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
mailing of such notice of removal, the retiring trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee,
or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to
the provisions of Section 5.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper
and prescribe, appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer
the evidence provided for in Section 7.01 of the action in that regard taken
by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in
Section 6.11.
Section 6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with
like effect as if originally named as trustee for such series hereunder; but,
nevertheless, on the written request of the Issuer or of the successor
trustee, upon payment of its charges then unpaid, the trustee ceasing to act
shall, subject to Section 10.04, pay over to the successor trustee all moneys
at the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Issuer shall
execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and
powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Section 6.06.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and
each successor trustee with respect to the Securities of any applicable
series shall execute and deliver an indenture supplemental hereto which shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the predecessor Trustee
with respect to the Securities of any series as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor
Trustee, and shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such trustees
co-trustees of the same trust and that each such trustee shall be trustee of
a trust or trusts under separate indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of
such acceptance such successor trustee shall be qualified under Section
310(b) of the Trust Indenture Act of 1939 and eligible under the provisions
of Section 6.09.
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.11, the Issuer shall give notice thereof (a) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and at least once
in an Authorized Newspaper in London (and, if required by Section 3.06, at
least once in an Authorized Newspaper in Luxembourg), (b) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof
who have filed their names and addresses with the Trustee within the two
years preceding the notice, by mailing such notice to such Holders at such
addresses as were so furnished to the Trustee (and the Trustee shall make
such information available to the Issuer for such purpose) and (c) to the
Holders of Registered Securities of each series affected, by mailing such
notice to such Holders at their addresses as they shall appear on the
registry books. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section
6.10. If the Issuer fails to give such notice within ten days after
acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be given at the expense of the Issuer.
Section 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under Section 310(b) of the Trust Indenture
Act of 1939 and eligible under the provisions of Section 6.09, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall
have been authenticated but not delivered, any such successor to the Trustee
may adopt the certificate of authentication of any predecessor Trustee and
deliver such Securities so authenticated; and, in case at that time any of
the Securities of any series shall not have been authenticated, any successor
to the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all
such cases such certificate shall have the full force which it is anywhere in
the Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have; provided, that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Securities of any series in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
Section 6.13 Preferential Collection of Claims Against the Issuer.
(This Section intentionally left blank.)
Section 6.14 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument
in writing, appoint with the approval of the Issuer an authenticating agent
(the "Authenticating Agent") which shall be authorized to act on behalf of
the Trustee to authenticate Securities, including Securities issued upon
exchange, registration of transfer, partial redemption or pursuant to Section
2.09. 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 the Trustee. Whenever
reference is made in this Indenture to the authentication and delivery of
Securities of any series by the Trustee or to the Trustee's Certificate of
Authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent for such series
and a Certificate of Authentication executed on behalf of the Trustee by such
Authenticating Agent. Such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States
of America or of any State, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $5,000,000
(determined as provided in Section 6.09 with respect to the Trustee) and
subject to supervision or examination by Federal or State authority.
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 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 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 Trustee and to
the Issuer.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or
more series of Securities, the Trustee shall upon receipt of an Issuer Order
appoint a successor Authenticating Agent and the Issuer shall provide notice
of such appointment to all Holders of Securities of such series in the manner
and to the extent provided in Section 11.04. 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. The Issuer
agrees to pay to the Authenticating Agent for such series from time to time
reasonable compensation. The Authenticating Agent for the Securities of any
series shall have no responsibility or liability for any action taken by it
as such at the direction of the Trustee.
Sections 6.02, 6.03, 6.04, 6.06, 6.09 and 7.03 shall be applicable to
any Authenticating Agent.
ARTICLE 7
Concerning the Securityholders
Section 7.01 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series or holders of
Capital Securities interested therein may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such specified
percentage of Securityholders or holders of Capital Securities in person or
by agent 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. Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Sections 6.01 and 6.02)
conclusive in favor of the Trustee and the Issuer, if made in the manner
provided in this Article.
Section 7.02 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.01 and 6.02, the execution of any
instrument by a Securityholder or, if a series of Securities is held by an
MSDW Capital Trust, a holder of Capital Securities or, in each case, his
agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder or, if a series of
Securities is held by an MSDW Capital Trust, by any holder of Capital
Securities of any instrument may be proved by the certificate of any notary
public or other officer of any jurisdiction authorized to take
acknowledgments of deeds or administer oaths that the person executing such
instruments 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 or on behalf of any legal entity other
than an individual, such certificate or affidavit shall also constitute
sufficient proof of the authority of the person executing the same. The fact
of the holding by any Holder or, if a series of Securities is held by an MSDW
Capital Trust, by any holder of Capital Securities of an Unregistered
Security of any series, and the identifying number of such Security and the
date of his holding the same, may be proved by the production of such
Security or by a certificate executed by any trust company, bank, banker or
recognized securities dealer wherever situated satisfactory to the Trustee,
if such certificate shall be deemed by the Trustee to be satisfactory. Each
such certificate shall be dated and shall state that on the date thereof a
Security of such series bearing a specified identifying number was deposited
with or exhibited to such trust company, bank, banker or recognized
securities dealer by the person named in such certificate. Any such
certificate may be issued in respect of one or more Unregistered Securities
of one or more series specified therein. The holding by the person named in
any such certificate of any Unregistered Securities of any series specified
therein shall be presumed to continue for a period of one year from the date
of such certificate unless at the time of any determination of such holding
(i) another certificate bearing a later date issued in respect of the same
Securities shall be produced, or (ii) the Security of such series specified
in such certificate shall be produced by some other person, or (iii) the
Security of such series specified in such certificate shall have ceased to be
Outstanding. Subject to Sections 6.01 and 6.02, the fact and date of the
execution of any such instrument and the amount and numbers of Securities of
any series held by the person so executing such instrument and the amount and
numbers of any Security or Securities for such series may also be proven in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee for such series or in any other manner which the Trustee for such
series may deem sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security register or by a certificate of
the Security registrar.
The Issuer may set a record date for purposes of determining the
identity of Holders of Registered Securities or, if a series of Securities is
held by an MSDW Capital Trust, of holders of registered Capital Securities of
any series entitled to vote or consent to any action referred to in Section
7.01, which record date may be set at any time or from time to time by notice
to the Trustee, for any date or dates (in the case of any adjournment or
reconsideration) not more than 60 days nor less than five days prior to the
proposed date of such vote or consent, and thereafter, notwithstanding any
other provisions hereof, with respect to Registered Securities of any series,
only Holders of Registered Securities or, if a series of Securities is held
by an MSDW Capital Trust, holders of registered Capital Securities of such
series of record on such record date shall be entitled to so vote or give
such consent or revoke such vote or consent.
Section 7.03 Holders to Be Treated as Owners. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the person in
whose name any Security shall be registered upon the Security register for
such series as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account
of the principal of and, subject to the provisions of this Indenture,
interest on such Security and for all other purposes; and neither the Issuer
nor the Trustee nor any agent of the Issuer or the Trustee shall be affected
by any notice to the contrary. The Issuer, the Trustee and any agent of the
Issuer or the Trustee may treat the Holder of any Unregistered Security and
the Holder of any Coupon or, if a series of Securities is held by an MSDW
Capital Trust, the holder of any unregistered Capital Security as the
absolute owner of such Unregistered Security or Coupon (whether or not such
Unregistered Security or Coupon shall be overdue) for the purpose of
receiving payment thereof or on account thereof and for all other purposes
and neither the Issuer, the Trustee, nor any agent of the Issuer or the
Trustee shall be affected by any notice to the contrary. All such payments so
made to any such person, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Unregistered Security or Coupon.
Notwithstanding the foregoing, if the Securities of such series are held
by an MSDW Capital Trust, nothing in this Section 7.03 shall be deemed to
impair the right of any holder of Capital Securities to institute a Direct
Action or to declare an Event of Default and accelerate the maturity of such
series.
Section 7.04 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount
of Outstanding Securities of any or all series have concurred in any
direction, consent or waiver under this Indenture, Securities which are owned
by the Issuer or any other obligor on the Securities with respect to which
such determination is being made or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver only Securities which the Trustee knows
are so owned shall be so disregarded; provided, that, if the Securities of
such series are held by an MSDW Capital Trust or a trustee of such trust, the
provisions of this Section 7.04 shall not apply. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Issuer or any
other obligor upon the Securities or any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities. In case of a dispute as
to such right, the advice of counsel shall be full protection in respect of
any decision made by the Trustee in accordance with such advice. Upon
request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officer's Certificate listing and identifying all Securities, if any, known
by the Issuer to be owned or held by or for the account of any of the above-
described persons; and, subject to Sections 6.01 and 6.02, the Trustee shall
be entitled to accept such Officer's Certificate as conclusive evidence of
the facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination.
Section 7.05 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.01,
of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security or, if any such series is held by an MSDW Capital Trust, any holder
of a Capital Security the serial number of which is shown by the evidence to
be included among the serial numbers of the Securities the Holders of which
have consented to such action may, by filing written notice at the Corporate
Trust Office and upon proof of holding as provided in this Article, revoke
such action so far as concerns such Security. Except as aforesaid any such
action taken by the Holder of any Security shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Security and
of any Securities issued in exchange or substitution therefor or on
registration of transfer thereof, irrespective of whether or not any notation
in regard thereto is made upon any such Security. Any action taken by the
Holders of the percentage in aggregate principal amount of the Securities of
any or all series, as the case may be, specified in this Indenture in
connection with such action shall be conclusively binding upon the Issuer,
the Trustee and the Holders of all the Securities affected by such action.
ARTICLE 8
Supplemental Indentures
Section 8.01 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order), and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer, or
successive successions, and the assumption by the successor corporation of
the covenants, agreements and obligations of the Issuer pursuant to Article
9;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the protection of the Holders of Securities or Coupons,
and to make the occurrence, or the occurrence and continuance, of a default
in any such additional covenants, restrictions, conditions or provisions an
Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided, that in
respect of any such additional covenant, restriction, condition or provision
such supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an immediate enforcement upon such
an Event of Default or may limit the remedies available to the Trustee upon
such an Event of Default or may limit the right of the Holders of a majority
in aggregate principal amount of the Securities of such series to waive such
an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make any other provisions as the Issuer may deem necessary
or desirable, provided that no such action shall adversely affect the
interests of the Holders of the Securities or Coupons;
(e) to establish the forms or terms of Securities of any series or of
the Coupons appertaining to such Securities as permitted by Sections 2.01 and
2.03; and
(f) to evidence and provide for the acceptance of appointment hereunder
by a successor trustee with respect to the Securities of one or more series
and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Section
6.11.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities
at the time outstanding, notwithstanding any of the provisions of Section
8.02.
Section 8.02 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article 7) of the Holders of not
less than a majority in aggregate principal amount of the Securities at the
time Outstanding of all series affected by such supplemental indenture
(voting as one class), the Issuer, when authorized by a resolution of its
Board of Directors (which resolution may provide general terms or parameters
for such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order), and the
Trustee may, from time to time and at any time, 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 any supplemental indenture or of modifying in any manner the rights of
the Holders of the Securities of each such series or of the Coupons
appertaining to such Securities; provided, that no such supplemental
indenture shall (a) extend the final maturity of any Security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption thereof, or make
the principal thereof (including any amount in respect of original issue
discount), or interest thereon payable in any coin or currency other than
that provided in the Securities and Coupons or in accordance with the terms
thereof, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of the maturity
thereof pursuant to Section 5.01 or the amount thereof provable in bankruptcy
pursuant to Section 5.02, or alter the provisions of Sections 11.11 or 11.12
or impair or affect the right of any Securityholder to institute suit for the
payment thereof or, if the Securities provide therefor, any right of
repayment at the option of the Securityholder, in each case without the
consent of the Holder of each Security so affected, or (b) reduce the
aforesaid percentage of Securities of any series, the consent of the Holders
of which is required for any such supplemental indenture, without the consent
of the Holders of each Security so affected; provided further, that, if the
Securities of such series are held by an MSDW Capital Trust or a trustee of
such trust, so long as any of the Capital Securities of such trust remain
outstanding, no such modification may be made that adversely affects the
holders of such Capital Securities in any material respect, and no
termination of this Indenture may occur, without the prior consent of the
holders of at least a majority of the aggregate liquidation amount of the
outstanding Capital Securities of such trust unless and until the principal
of such Securities and all accrued and unpaid interest thereon have been paid
in full, and none of the modifications described in clauses (a) and (b) above
may be made without the prior written consent of all the holders of Capital
Securities of such MSDW Trust. In addition, the Issuer may not amend this
Indenture to remove the rights of holders of Capital Securities of an MSDW
Capital Trust to institute a Direct Action without the prior written consent
of all the holders of Capital Securities of such trust or to remove the
obligation to obtain the consent of such holders of Capital Securities in
accordance with this Section, without the consent of a majority of the
Capital Securities of such Trust.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series, or of Coupons
appertaining to such Securities, with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series or of the Coupons appertaining to such
Securities.
Upon the request of the Issuer, accompanied by a copy of a resolution of
the Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order)
certified by the secretary or an assistant secretary of the Issuer
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of the Holders of the
Securities as aforesaid and other documents, if any, required by Section
7.01, the Trustee shall join with the Issuer in the execution of such
supplemental indenture unless such supplemental indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise,
in which case the Trustee may in its discretion, but shall not be obligated
to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give notice thereof (a) to the Holders of then Outstanding
Registered Securities of each series affected thereby, by mailing a notice
thereof by first-class mail to such Holders at their addresses as they shall
appear on the Security register, (b) if any Unregistered Securities of a
series affected thereby are then Outstanding, to the Holders thereof who have
filed their names and addresses with the Trustee within two years preceding
such notice, by mailing a notice thereof by first-class mail to such Holders
at such addresses as were so furnished to the Trustee and (c) if any
Unregistered Securities of a series affected thereby are then Outstanding, to
all Holders thereof, by publication of a notice thereof at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London (and, if required by Section
3.06, at least once in an Authorized Newspaper in Luxembourg), and in each
case such notice shall set forth in general terms the substance of such
supplemental indenture. Any failure of the Issuer to give such notice, or any
defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
Section 8.03 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Issuer and the Holders of
Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section 8.04 Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 6.01 and 6.02, may receive an Officer's
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article 8 complies with the
applicable provisions of this Indenture.
Section 8.05 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series
as to any matter provided for by such supplemental indenture or as to any
action taken by Securityholders. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of
this Indenture contained in any such supplemental indenture may be prepared
by the Issuer, authenticated by the Trustee and delivered in exchange for the
Securities of such series then Outstanding.
Section 8.06 Subordination Unimpaired. This Indenture may not be
amended to alter the subordination of any of the Outstanding Securities
without the written consent of each holder of Senior Indebtedness then
outstanding that would be adversely affected thereby.
ARTICLE 9
Consolidation, Merger, Sale or Conveyance
Section 9.01 Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions. The Issuer covenants that it will
not merge or consolidate with any other person or sell, lease or convey all
or substantially all of its assets to any other person, unless (a) either the
Issuer shall be the continuing corporation, or the successor corporation or
the person which acquires by sale, lease or conveyance substantially all the
assets of the Issuer (if other than the Issuer) shall be a corporation
organized under the laws of the United States of America or any State thereof
or the District of Columbia and shall expressly assume the due and punctual
payment of the principal of and interest on all the Securities and Coupons,
if any, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed or observed by the Issuer, by supplemental indenture satisfactory
to the Trustee, executed and delivered to the Trustee by such corporation,
and (b) the Issuer, such person or such successor corporation, as the case
may be, shall not, immediately after such merger or consolidation, or such
sale, lease or conveyance, be in default in the performance of any such
covenant or condition.
Section 9.02 Successor Corporation Substituted. In case of any such
consolidation, merger, sale, lease or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer, with the same effect as if it
had been named herein. Such successor corporation may cause to be signed, and
may issue either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder which together
with any Coupons appertaining thereto theretofore shall not have been signed
by the Issuer and delivered to the Trustee; and, upon the order of such
successor corporation, instead of the Issuer, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities together with any Coupons
appertaining thereto which previously shall have been signed and delivered by
the officers of the Issuer to the Trustee for authentication, and any
Securities which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All of the Securities
so issued together with any Coupons appertaining thereto shall in all
respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date
of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phrasing and form (but not in substance) may be made in the
Securities and Coupons thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease) the Issuer or any successor corporation which shall theretofore
have become such in the manner described in this Article shall be discharged
from all obligations and covenants under this Indenture and the Securities
and may be liquidated and dissolved.
Section 9.03 Opinion of Counsel Delivered to Trustee. The Trustee,
subject to the provisions of Sections 6.01 and 6.02, may receive an Opinion
of Counsel as conclusive evidence that any such consolidation, merger, sale,
lease or conveyance, and any such assumption, and any such liquidation or
dissolution, complies with the applicable provisions of this Indenture.
ARTICLE 10
Satisfaction and Discharge of Indenture; Unclaimed Moneys
Section 10.01 Satisfaction and Discharge of Indenture. (a) If at any
time (i) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any series Outstanding hereunder and all
unmatured Coupons appertaining thereto (other than Securities of such series
and Coupons appertaining thereto which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.09) as and when
the same shall have become due and payable, or (ii) the Issuer shall have
delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated and all unmatured Coupons appertaining thereto
(other than any Securities of such series and Coupons appertaining thereto
which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.09) or (iii) in the case of any
series of Securities where the exact amount (including the currency of
payment) of principal of and interest due on which can be determined at the
time of making the deposit referred to in clause (B) below, (A) all the
Securities of such series and all unmatured Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable within one year
or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (B)
the Issuer shall have irrevocably deposited or caused to be deposited with
the Trustee as trust funds the entire amount in cash (other than moneys
repaid by the Trustee or any paying agent to the Issuer in accordance with
Section 10.04) or, in the case of any series of Securities the payments on
which may only be made in Dollars, direct obligations of the United States of
America, backed by its full faith and credit ("U.S. Government Obligations"),
maturing as to principal and interest at such times and in such amounts as
will insure the availability of cash, or a combination thereof, sufficient in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
(1) the principal and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal or interest is due and
payable and (2) any mandatory sinking fund payments on the dates on which
such payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series; and if, in any such case, the
Issuer shall also pay or cause to be paid all other sums payable hereunder by
the Issuer, then this Indenture shall cease to be of further effect (except
as to (i) rights of registration of transfer and exchange of Securities of
such Series and of Coupons appertaining thereto and the Issuer's right of
optional redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (iii) rights of holders of
Securities and Coupons appertaining thereto to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor
(but not upon acceleration), and remaining rights of the Holders to receive
mandatory sinking fund payments, if any, (iv) the rights, obligations, duties
and immunities of the Trustee hereunder, (v) the rights of the Holders of
Securities of such series and Coupons appertaining thereto as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to
all or any of them, and (vi) the obligations of the Issuer under Section
3.02) and the Trustee, on demand of the Issuer accompanied by an Officer's
Certificate and an Opinion of Counsel and at the cost and expense of the
Issuer, shall execute proper instruments acknowledging such satisfaction of
and discharging this Indenture; provided, that the rights of Holders of the
Securities and Coupons to receive amounts in respect of principal of and
interest on the Securities and Coupons held by them shall not be delayed
longer than required by then-applicable mandatory rules or policies of any
securities exchange upon which the Securities are listed. The Issuer agrees
to reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities of such series.
(b) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution,
Officer's Certificate or indenture supplemental hereto provided pursuant to
Section 2.03. In addition to discharge of the Indenture pursuant to the next
preceding paragraph, in the case of any series of Securities the exact
amounts (including the currency of payment) of principal of and interest due
on which can be determined at the time of making the deposit referred to in
clause (i) below, the Issuer shall be deemed to have paid and discharged the
entire indebtedness on all the Securities of such a series and the Coupons
appertaining thereto on the 91st day after the date of the deposit referred
to in subparagraph (i) below, and the provisions of this Indenture with
respect to the Securities of such series and Coupons appertaining thereto
shall no longer be in effect (except as to (A) rights of registration of
transfer and exchange of Securities of such series and of Coupons
appertaining thereto and the Issuer's right of optional redemption, if any,
(B) substitution of mutilated, defaced, destroyed, lost or stolen Securities
or Coupons, (C) rights of Holders of Securities and Coupons appertaining
thereto to receive payments of principal thereof and interest thereon, upon
the original stated due dates therefor (but not upon acceleration), and
remaining rights of the Holders to receive mandatory sinking fund payments,
if any, (D) the rights, obligations, duties and immunities of the Trustee
hereunder, (E) the rights of the Holders of Securities of such series and
Coupons appertaining thereto as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them and (F)
the obligations of the Issuer under Section 3.02) and the Trustee, at the
expense of the Issuer, shall at the Issuer's request, execute proper
instruments acknowledging the same, if
(i) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as
trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of
such series and Coupons appertaining thereto (A) cash in an amount, or
(B) in the case of any series of Securities the payments on which may
only be made in Dollars, U.S. Government Obligations, maturing as to
principal and interest at such times and in such amounts as will insure
the availability of cash or (C) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay (1) the principal and interest on all Securities of
such series and Coupons appertaining thereto on each date that such
principal or interest is due and payable and (2) any mandatory sinking
fund payments on the dates on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of such
series;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the
Issuer is a party or by which it is bound;
(iii) the Issuer has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Issuer has received from, or
there has been published by, the Internal Revenue Service a ruling or
(y) since the date hereof, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and such
opinion shall confirm that, the Holders of the Securities of such series
and Coupons appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to Federal income tax on the same
amount and in the same manner and at the same times, as would have been
the case if such deposit, defeasance and discharge had not occurred;
(iv) the Issuer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
provision have been complied with;
(v) no event or condition shall exist that, pursuant to the
provisions of Section 13.01, would prevent the Issuer from making
payments of the principal of or interest on the Securities of such
series and Coupons appertaining thereto on the date of such deposit or
at any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period); and
(vi) the Issuer has delivered to the Trustee an Opinion of Counsel
to the effect that (x) the trust funds will not be subject to any rights
of holders of Senior Indebtedness, including without limitation those
arising under Article 13 of this Indenture, and (y) after the 91st day
following the deposit, the trust funds will not be subject to the effect
of any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally, except that if a court were to
rule under any such law in any case or proceeding that the trust funds
remained property of the Issuer, no opinion is given as to the effect of
such laws on the trust funds except the following: (A) assuming such
trust funds remained in the Trustee's possession prior to such court
ruling to the extent not paid to Holders of Securities of such series
and Coupons appertaining thereto, the Trustee will hold, for the benefit
of such Holders, a valid and perfected security interest in such trust
funds that is not avoidable in bankruptcy or otherwise, (B) such Holders
will be entitled to receive adequate protection of their interests in
such trust funds if such trust funds are used, and (C) no property,
rights in property or other interests granted to the Trustee or such
Holders in exchange for or with respect to any of such funds will be
subject to any prior rights of holders of Senior Indebtedness, including
without limitation those arising under Article 13 of this Indenture.
(c) The Issuer shall be released from its obligations under Section
9.01 with respect to the Securities of any Series, and any Coupons
appertaining thereto, Outstanding on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"). For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Securities of any Series, the Issuer may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in
such Section, whether directly or indirectly by reason of any reference
elsewhere herein to such Section or by reason of any reference in such
Section to any other provision herein or in any other document and such
omission to comply shall not constitute an Event of Default under Section
5.01, but the remainder of this Indenture and such Securities and Coupons
shall be unaffected thereby. The following shall be the conditions to
application of this subsection (c) of this Section 10.01:
(i) The Issuer has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the holders of the Securities of such series
and Coupons appertaining thereto, (A) cash in an amount, or (B) in the
case of any series of Securities the payments on which may only be made
in Dollars, U.S. Government Obligations maturing as to principal and
interest at such times and in such amounts as will insure the
availability of cash or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay (1) the principal and interest on all Securities of
such series and Coupons appertaining thereto and (2) any mandatory
sinking fund payments on the day on which such payments are due and
payable in accordance with the terms of the Indenture and the Securities
of such series.
(ii) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit or, insofar as subsections 5.01(d) and 5.01(e) are concerned, at
any time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(iii) Such covenant defeasance shall not cause the Trustee to
have a conflicting interest as defined in Section 6.08 and for purposes
of the Trust Indenture Act of 1939 with respect to any securities of the
Issuer.
(iv) Such covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Issuer is a party or by which it is
bound.
(v) Such covenant defeasance shall not cause any Securities then
listed on any registered national securities exchange under the
Securities Exchange Act of 1934, as amended, to be delisted.
(vi) No event or condition shall exist that, pursuant to the
provisions of Section 13.01, would prevent the Issuer from making
payments of the principal of or interest on the Securities of such
series and Coupons appertaining thereto on the date of such deposit or
at any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(vii) The Issuer shall have delivered to the Trustee an
Officer's Certificate and Opinion of Counsel to the effect that the
Holders of the Securities of such series and Coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had
not occurred.
(viii) The Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the covenant defeasance
contemplated by this provision have been complied with.
(ix) The Issuer has delivered to the Trustee an Opinion of Counsel
to the effect that (x) the trust funds will not be subject to any rights
of holders of Senior Indebtedness, including without limitation those
arising under Article 13 of this Indenture, and (y) after the 91st day
following the deposit, the trust funds will not be subject to the effect
of any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally, except that if a court were to
rule under any such law in any case or proceeding that the trust funds
remained property of the Issuer, no opinion is given as to the effect of
such laws on the trust funds except the following: (A) assuming such
trust funds remained in the Trustee's possession prior to such court
ruling to the extent not paid to Holders of Securities of such series
and Coupons appertaining thereto, the Trustee will hold, for the benefit
of such Holders, a valid and perfected security interest in such trust
funds that is not avoidable in bankruptcy or otherwise, (B) such Holders
will be entitled to receive adequate protection of their interests in
such trust funds if such trust funds are used, and (C) no property,
rights in property or other interests granted to the Trustee or such
Holders in exchange for or with respect to any of such funds will be
subject to any prior rights of holders of Senior Indebtedness, including
without limitation those arising under Article 13 of this Indenture.
Section 10.02 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.04, all moneys deposited with the Trustee
(or other trustee) pursuant to Section 10.01 shall be held in trust and
applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series and of Coupons appertaining thereto for
the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and
interest; but such money need not be segregated from other funds except to
the extent required by law.
Section 10.03 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to
Securities of any series, all moneys then held by any paying agent under the
provisions of this Indenture with respect to such series of Securities shall,
upon demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
Section 10.04 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest on any
Security of any series or Coupons attached thereto and not applied but
remaining unclaimed for two years after the date upon which such principal or
interest shall have become due and payable, shall, upon the written request
of the Issuer and unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be repaid to the
Issuer by the Trustee for such series or such paying agent, and the Holder of
the Securities of such series and of any Coupons appertaining thereto shall,
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property laws, thereafter look only to the Issuer for
any payment which such Holder may be entitled to collect, and all liability
of the Trustee or any paying agent with respect to such moneys shall
thereupon cease; provided, however, that the Trustee or such paying agent,
before being required to make any such repayment with respect to moneys
deposited with it for any payment (a) in respect of Registered Securities of
any series, shall at the expense of the Issuer, mail by first-class mail to
Holders of such Securities at their addresses as they shall appear on the
Security register, an (b) in respect of Unregistered Securities of any
series, shall at the expense of the Issuer cause to be published once, in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and
once in an Authorized Newspaper in London (and if required by Section 3.06,
once in an Authorized Newspaper in Luxembourg), notice, that such moneys
remain and that, after a date specified therein, which shall not be less than
thirty days from the date of such mailing or publication, any unclaimed
balance of such money then remaining will be repaid to the Issuer.
Section 10.05 Indemnity for U.S. Government Obligations. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 10.01 or the principal or interest received in respect of
such obligations.
ARTICLE 11
Miscellaneous Provisions
Section 11.01 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of
law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities and the Coupons appertaining thereto by the Holders thereof and as
part of the consideration for the issue of the Securities and the Coupons
appertaining thereto.
Section 11.02 Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities and Coupons. Nothing in this Indenture, in the
Securities or in the Coupons appertaining thereto, expressed or implied,
shall give or be construed to give to any person, firm or corporation, other
than the parties hereto and their successors and the holders of Senior
Indebtedness and the Holders of the Securities or Coupons, if any, any legal
or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions
being for the sole benefit of the parties hereto and their successors, the
holders of the Senior Indebtedness and the Holders of the Securities or
Coupons, if any.
Section 11.03 Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Issuer shall bind its successors and
assigns, whether so expressed or not.
Section 11.04 Notices and Demands on Issuer, Trustee and Holders of
Securities and Coupons. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities or Coupons to or on the Issuer may be given or
served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of
the Issuer is filed by the Issuer with the Trustee) to Morgan Stanley, Dean
Witter, Discover & Co., 1585 Broadway, New York, New York 10036, Attention:
Secretary. Any notice, direction, request or demand by the Issuer or any
Holder of Securities or Coupons to or upon the Trustee shall be deemed to
have been sufficiently given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Trustee is filed by the Trustee with the
Issuer) to The Bank of New York, 101 Barclay St, Floor 31 West, New York, New
York 10286, Attention: Corporate Trust Administration.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder entitled thereto, at his last address as it appears in the
Security register. In any case where notice to such 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. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the person entitled to
receive such notice, either before or after the event, and such waiver shall
be the equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when
such notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Section 11.05 Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent 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
have been complied with, except that in the case of any such application or
demand as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or
demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered
to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition (b) 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 (c) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to
enable him to express an opinion as to whether or not such covenant or
condition has been complied with an (d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied
with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same
are erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which
is in the possession of the Issuer, upon the certificate, statement or
opinion of or representations by an officer or officers of the Issuer, unless
such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as
the case may be, knows that the certificate or opinion or representations
with respect to the accounting matters upon which his certificate, statement
or opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with and directed to the Trustee shall contain a statement that such
firm is independent.
Section 11.06 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any series
or any Coupons appertaining thereto or the date fixed for redemption or
repayment of any such Security or Coupon shall not be a Business Day, then
payment of interest or principal need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made on the date of maturity or the date fixed for redemption, and no
interest shall accrue for the period after such date.
Section 11.07 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by, or with
another provision (an "incorporated provision") included in this Indenture by
operation of, Sections 310 to 318, inclusive, of the Trust Indenture Act of
1939, such imposed duties or incorporated provision shall control.
Section 11.08 New York Law to Govern. This Indenture and each Security
and Coupon shall be deemed to be a contract under the laws of the State of
New York, and for all purposes shall be construed in accordance with the laws
of such State, except as may otherwise be required by mandatory provisions of
law.
Section 11.09 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
Section 11.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
Section 11.11 Securities in a Foreign Currency or in ECU. Unless
otherwise specified in an Officer's Certificate delivered pursuant to Section
2.03 of this Indenture with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be taken by the
Holders of a specified percentage in aggregate principal amount of Securities
of all series or all series affected by a particular action at the time
Outstanding and, at such time, there are Outstanding Securities of any series
which are denominated in a coin or currency other than Dollars (including
ECUs), then the principal amount of Securities of such series which shall be
deemed to be Outstanding for the purpose of taking such action shall be that
amount of Dollars that could be obtained for such amount at the Market
Exchange Rate. For purposes of this Section 11.11, Market Exchange Rate shall
mean the noon Dollar buying rate in New York City for cable transfers of that
currency published by the Federal Reserve Bank of New York; provided,
however, in the case of ECUs, Market Exchange Rate shall mean the rate of
exchange determined by the Commission of the European Communities (or any
successor thereto) as published in the Official Journal of the European
Communities (such publication or any successor publication, the "Journal").
If such Market Exchange Rate is not available for any reason with respect to
such currency, the Trustee shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York
or, in the case of ECUs, the rate of exchange as published in the Journal, as
of the most recent available date, or quotations or, in the case of ECUs,
rates of exchange from one or more major banks in The City of New York or in
the country of issue of the currency in question, which for purposes of the
ECU shall be Brussels, Belgium, or such other quotations or, in the case of
ECU, rates of exchange as the Trustee shall deem appropriate. The provisions
of this paragraph shall apply in determining the equivalent principal amount
in respect of Securities of a series denominated in a currency other than
Dollars in connection with any action taken by Holders of Securities pursuant
to the terms of this Indenture, including, without limitation, any
determination contemplated in Sections 5.01(f) or 5.01(g).
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive to the extent permitted by law for all purposes
and irrevocably binding upon the Issuer and all Holders.
Section 11.12 Judgment Currency. The Issuer agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for
the purpose of obtaining judgment in any court it is necessary to convert the
sum due in respect of the principal of or interest on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment
Currency on the day on which final unappealable judgment is entered, unless
such day is not a New York Banking Day, then, to the extent permitted by
applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the New
York Banking Day preceding the day on which a final unappealable judgment is
entered, and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or
any recovery pursuant to any judgment (whether or not entered in accordance
with subsection (a)), in any currency other than the Required Currency,
except to the extent that such tender or recovery shall result in the actual
receipt, by the payee, of the full amount of the Required Currency expressed
to be payable in respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any
other sum due under this Indenture. For purposes of the foregoing, "New York
Banking Day" means any day except a Saturday, Sunday or a legal holiday in
The City of New York or a day on which banking institutions in The City of
New York are authorized or required by law or executive order to close.
ARTICLE 12
Redemption of Securities and Sinking Funds
Section 12.01 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 2.03 for
Securities of such series.
Section 12.02 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be
redeemed as a whole or in part at the option of the Issuer shall be given by
mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for
redemption to such Holders of Securities of such series at their last
addresses as they shall appear upon the registry books. Notice of redemption
to the Holders of Unregistered Securities to be redeemed as a whole or in
part, who have filed their names and addresses with the Trustee within the
two years preceding such notice of redemption, shall be given by mailing
notice of such redemption, by first class mail, postage prepaid, at least 30
days and not more than 60 prior to the date fixed for redemption, to such
Holders at such addresses as were so furnished to the Trustee (and, in the
case of any such notice given by the Issuer, the Trustee shall make such
information available to the Issuer for such purpose). Notice of redemption
to all other Holders of Unregistered Securities shall be published in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and in
an Authorized Newspaper in London (and, if required by Section 3.06, in an
Authorized Newspaper in Luxembourg), in each case, once in each of three
successive calendar weeks, the first publication to be not less than 30 nor
more than 60 days prior to the date fixed for redemption. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice. Failure to
give notice by mail, or any defect in the notice to the Holder of any
Security of a series designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of any other
Security of such series.
The notice of redemption to each such Holder shall specify the principal
amount of each Security of such series held by such Holder to be redeemed,
the date fixed for redemption, the redemption price, the place or places of
payment, that payment will be made upon presentation and surrender of such
Securities and, in the case of Securities with Coupons attached thereto, of
all Coupons appertaining thereto maturing after the date fixed for
redemption, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be redeemed
will cease to accrue. In case any Security of a series is to be redeemed in
part only the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after the date
fixed for redemption, upon surrender of such Security, a new Security or
Securities of such series in principal amount equal to the unredeemed portion
thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee
or with one or more paying agents (or, if the Issuer is acting as its own
paying agent, set aside, segregate and hold in trust as provided in Section
3.04) an amount of money sufficient to redeem on the redemption date all the
Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. The Issuer will deliver to the Trustee at least 70 days prior to
the date fixed for redemption an Officer's Certificate stating the aggregate
principal amount of Securities to be redeemed. In case of a redemption at the
election of the Issuer prior to the expiration of any restriction on such
redemption, the Issuer shall deliver to the Trustee, prior to the giving of
any notice of redemption to Holders pursuant to this Section, an Officer's
Certificate stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed in whole or in part. Securities may
be redeemed in part in multiples equal to the minimum authorized denomination
for Securities of such series or any multiple thereof. The Trustee shall
promptly notify the Issuer in writing of the Securities of such series
selected for redemption and, in the case of any Securities of such series
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities of any series shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
Section 12.03 Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date
and at the place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption, and on and
after said date (unless the Issuer shall default in the payment of such
Securities at the redemption price, together with interest accrued to said
date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue, and the unmatured Coupons, if any,
appertaining thereto shall be void, and, except as provided in Sections 6.05
and 10.04, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this Indenture,
and the Holders thereof shall have no right in respect of such Securities
except the right to receive the redemption price thereof and unpaid interest
to the date fixed for redemption. On presentation and surrender of such
Securities at a place of payment specified in said notice, together with all
Coupons, if any, appertaining thereto maturing after the date fixed for
redemption, said Securities or the specified portions thereof shall be paid
and redeemed by the Issuer at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption; provided that
payment of interest becoming due on or prior to the date fixed for redemption
shall be payable in the case of Securities with Coupons attached thereto, to
the Holders of the Coupons for such interest upon surrender thereof, and in
the case of Registered Securities, to the Holders of such Registered
Securities registered as such on the relevant record date subject to the
terms and provisions of Sections 2.03 and 2.07 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after
the date fixed for redemption, the surrender of such missing Coupon or
Coupons may be waived by the Issuer and the Trustee, if there be furnished to
each of them such security or indemnity as they may require to save each of
them harmless.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the
order of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
Section 12.04 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and
certificate number in an Officer's Certificate delivered to the Trustee at
least 40 days prior to the last date on which notice of redemption may be
given as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer.
Section 12.05 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of the 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 the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of
such series (not previously so credited) theretofore purchased or otherwise
acquired (except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional
sinking fund payments (not previously so credited) made pursuant to this
Section, or (c) receive credit for Securities of such series (not previously
so credited) redeemed by the Issuer through any optional redemption provision
contained in the terms of such series. Securities so delivered or credited
shall be received or credited by the Trustee at the sinking fund redemption
price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment date
for any series, the Issuer will deliver to the Trustee an Officer's
Certificate (which need not contain the statements required by Section 11.05)
(a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of
Securities of such series and the basis for such credit, (b) stating that
none of the Securities of such series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured)
and are continuing and (d) stating whether or not the Issuer intends to
exercise its right to make an optional sinking fund payment with respect to
such series and, if so, specifying the amount of such optional sinking fund
payment which the Issuer intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the Issuer to be
entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to
Section 2.10 to the Trustee with such Officer's Certificate (or reasonably
promptly thereafter if acceptable to the Trustee). Such Officer's Certificate
shall be irrevocable and upon its receipt by the Trustee the Issuer shall
become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such 60th day, to
deliver such Officer's Certificate and Securities specified in this
paragraph, if any, shall not constitute a default but shall constitute, on
and as of such date, the irrevocable election of the Issuer (i) that the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option
to deliver or credit Securities of such series in respect thereof and (ii)
that the Issuer will make no optional sinking fund payment with respect to
such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or the equivalent thereof in any Foreign Currency or ECU) or
a lesser sum in Dollars (or the equivalent thereof in any Foreign Currency or
ECU) if the Issuer shall so request with respect to the Securities of any
particular series, such cash shall be applied on the next succeeding sinking
fund payment date to the redemption of Securities of such series at the
sinking fund redemption price together with accrued interest to the date
fixed for redemption. If such amount shall be $50,000 (or the equivalent
thereof in any Foreign Currency or ECU) or less and the Issuer makes no such
request then it shall be carried over until a sum in excess of $50,000 (or
the equivalent thereof in any Foreign Currency or ECU) is available. The
Trustee shall select, in the manner provided in Section 12.02, for redemption
on such sinking fund payment date a sufficient principal amount of Securities
of such series to absorb said cash, as nearly as may be, and shall (if
requested in writing by the Issuer) inform the Issuer of the serial numbers
of the Securities of such series (or portions thereof) so selected.
Securities shall be excluded from eligibility for redemption under this
Section if they are identified by registration and certificate number in an
Officer's Certificate delivered to the Trustee at least 60 days prior to the
sinking fund payment date as being owned of record and beneficially by, and
not pledged or hypothecated by either (a) the Issuer or (b) an entity
specifically identified in such Officer's Certificate as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer. The Trustee, in the name and at the expense of the
Issuer (or the Issuer, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 12.02 (and with the effect
provided in Section 12.03) for the redemption of Securities of such series in
part at the option of the Issuer. The amount of any sinking fund payments not
so applied or allocated to the redemption of Securities of such series shall
be added to the next cash sinking fund payment for such series and, together
with such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of
the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of,
and interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to the
Trustee in cash or shall otherwise provide for the payment of all interest
accrued to the date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or give any notice of redemption of
Securities for such series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the giving of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or
cause to be redeemed such Securities, provided that it shall have received
from the Issuer a sum sufficient for such redemption. 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
the sinking fund, shall, during the continuance of such default or Event of
Default, be deemed to have been collected under Article 5 and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 5.10 or the default cured on or before the
sixtieth day preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund payment date
in accordance with this Section to the redemption of such Securities.
ARTICLE 13
Subordination
Section 13.01 Securities and Coupons Subordinated to Senior
Indebtedness. The Issuer covenants and agrees, and each Holder of a Security
or Coupon, by his acceptance thereof, likewise covenants and agrees, that the
indebtedness represented by the Securities and any Coupons and the payment of
the principal of and interest on each and all of the Securities and of any
Coupons is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of
Senior Indebtedness.
In the event (a) of any insolvency or bankruptcy proceedings or any
receivership, liquidation, reorganization or other similar proceedings in
respect of the Issuer or a substantial part of its property, or of any
proceedings for liquidation, dissolution or other winding up of the Issuer,
whether or not involving insolvency or bankruptcy, or (b) subject to the
provisions of Section 13.02 that (i) a default shall have occurred with
respect to the payment of principal of or interest on or other monetary
amounts due and payable on any Senior Indebtedness, or (ii) there shall have
occurred an event of default (other than a default in the payment of
principal or interest or other monetary amounts due and payable) in respect
of any Senior Indebtedness, as defined therein or in the instrument under
which the same is outstanding, permitting the holder or holders thereof to
accelerate the maturity thereof (with notice or lapse of time, or both), and
such event of default shall have continued beyond the period of grace, if
any, in respect thereof, and, in the cases of subclauses (i) and (ii) of this
clause (b), such default or event of default shall not have been cured or
waived or shall not have ceased to exist, or (c) that the principal of and
accrued interest on the Securities of any series shall have been declared due
and payable pursuant to Section 5.01 and such declaration shall not have been
rescinded and annulled as provided in Section 5.01 then:
(i) the holders of all Senior Indebtedness shall first be entitled
to receive payment of the full amount due thereon, or provision shall be
made for such payment in money or money's worth, before the Holders of
any of the Securities or Coupons are entitled to receive a payment on
account of the principal of or interest on the indebtedness evidenced by
the Securities or of the Coupons, including, without limitation, any
payments made pursuant to Article 12;
(ii) any payment by, or distribution of assets of, the Issuer of
any kind or character, whether in cash, property or securities, to which
the Holders of any of the Securities or Coupons or the Trustee would be
entitled except for the provisions of this Article shall be paid or
delivered by the person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of such Senior Indebtedness or their
representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of such Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full of
all Senior Indebtedness remaining unpaid after giving effect to any
concurrent payment or distribution (or provision therefor) to the
holders of such Senior Indebtedness, before any payment or distribution
is made to the holders of the indebtedness evidenced by the Securities
or Coupons or to the Trustee under this instrument; and
(iii) in the event that, notwithstanding the foregoing, any
payment by, or distribution of assets of, the Issuer of any kind or
character, whether in cash, property or securities, in respect of
principal of or interest on the Securities or in connection with any
repurchase by the Issuer of the Securities, shall be received by the
Trustee or the Holders of any of the Securities or Coupons before all
Senior Indebtedness is paid in full, or provision made for such payment
in money or money's worth, such payment or distribution in respect of
principal of or interest on the Securities or in connection with any
repurchase by the Issuer of the Securities shall be paid over to the
holders of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any such Senior Indebtedness may have
been issued, ratably as aforesaid, for application to the payment of all
Senior Indebtedness remaining unpaid until all such Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent
payment or distribution (or provision therefor) to the holders of such
Senior Indebtedness.
Notwithstanding the foregoing, at any time after the 91st day following
the date of deposit of cash or, in the case of Securities payable only in
Dollars, U.S. Government Obligations pursuant to Section 10.01(b) or 10.01(c)
(provided all other conditions set out in such Section shall have been
satisfied) the funds so deposited and any interest thereon will not be
subject to any rights of holders of Senior Indebtedness including, without
limitation, those arising under this Article 13.
Section 13.02 Disputes with Holders of Certain Senior Indebtedness.
Any failure by the Issuer to make any payment on or perform any other
obligation under Senior Indebtedness, other than any indebtedness incurred by
the Issuer or assumed or guaranteed, directly or indirectly, by the Issuer
for money borrowed (or any deferral, renewal, extension or refunding thereof)
or any indebtedness or obligation as to which the provisions of this Section
shall have been waived by the Issuer in the instrument or instruments by
which the Issuer incurred, assumed, guaranteed or otherwise created such
indebtedness or obligation, shall not be deemed a default or event of default
under Section 13.01(b) if (a) the Issuer shall be disputing its obligation to
make such payment or perform such obligation and (b) either (i) no final
judgment relating to such dispute shall have been issued against the Issuer
which is in full force and effect and is not subject to further review,
including a judgment that has become final by reason of the expiration of the
time within which a party may seek further appeal or review, and (ii) in the
event of a judgment that is subject to further review or appeal has been
issued, the Issuer shall in good faith be prosecuting an appeal or other
proceeding for review and a stay of execution shall have been obtained
pending such appeal or review.
Section 13.03 Subrogation. Subject to the payment in full of all
Senior Indebtedness, the Holders of the Securities and any Coupons shall be
subrogated (equally and ratably with the holders of all obligations of the
Issuer which by their express terms are subordinated to Senior Indebtedness
of the Issuer to the same extent as the Securities are subordinated and which
are entitled to like rights of subrogation) to the rights of the holders of
Senior Indebtedness to receive payments or distributions of cash, property or
securities of the Issuer applicable to the Senior Indebtedness until all
amounts owing on the Securities and any Coupons shall be paid in full, and as
between the Issuer, its creditors other than holders of such Senior
Indebtedness and the Holders, no such payment or distribution made to the
holders of Senior Indebtedness by virtue of this Article that otherwise would
have been made to the Holders shall be deemed to be a payment by the Issuer
on account of such Senior Indebtedness, it being understood that the
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the holders
of Senior Indebtedness, on the other hand.
Section 13.04 Obligation of Issuer Unconditional. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities or any
Coupons is intended to or shall impair, as among the Issuer, its creditors
other than the holders of Senior Indebtedness and the Holders, the obligation
of the Issuer, which is absolute and unconditional, to pay to the Holders the
principal of and interest on the Securities and the amounts owed pursuant to
any Coupons as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of
the Holders and creditors of the Issuer other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Indebtedness in respect of cash, property or
securities of the Issuer received upon the exercise of any such remedy.
Upon payment or distribution of assets of the Issuer referred to in this
Article, the Trustee and the Holders shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which any such
dissolution, winding up, liquidation or reorganization proceeding affecting
the affairs of the Issuer is pending or upon a certificate of the trustee in
bankruptcy, receiver, assignee for the benefit of creditors, liquidating
trustee or agent or other person making any payment or distribution,
delivered to the Trustee or to the Holders, for the purpose of ascertaining
the persons entitled to participate in such payment or distribution, the
holders of the Senior Indebtedness and other indebtedness of the Issuer, the
amount thereof or payable thereon, the amount paid or distributed thereon and
all other facts pertinent thereto or to this Article.
Section 13.05 Payments on Securities and Coupons Permitted. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities
or Coupons shall affect the obligations of the Issuer to make, or prevent the
Issuer from making, payment of the principal of or interest on the Securities
and of any Coupons in accordance with the provisions hereof and thereof,
except as otherwise provided in this Article.
Section 13.06 Effectuation of Subordination by Trustee. Each holder of
Securities or Coupons, 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 provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes.
Section 13.07 Knowledge of Trustee. Notwithstanding the provisions of
this Article or any other provisions of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts that would prohibit
the making of any payment of moneys to or by the Trustee, or the taking of
any other action by the Trustee, unless and until the Trustee shall have
received written notice thereof mailed or delivered to the Trustee at its
Corporate Trust Office from the Issuer, any Holder, any paying agent or the
holder or representative of any class of Senior Indebtedness; provided that
if at least three Business Days prior to the date upon which by the terms
hereof any such moneys may become payable for any purpose (including, without
limitation, the payment of the principal or interest on any Security or
interest on any Coupon) the Trustee shall not have received with respect to
such moneys the notice provided for in this Section, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such moneys and to apply the same to the purpose for
which they were received and shall not be affected by any notice to the
contrary that may be received by it within three Business Days prior to or on
or after such date.
Section 13.08 Trustee May Hold Senior Indebtedness. The Trustee shall
be entitled to all the rights set forth in this Article with respect to any
Senior Indebtedness at the time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in Section 6.03 or elsewhere in
this Indenture shall deprive the Trustee of any of its rights as such holder.
Section 13.09 Rights of Holders of Senior Indebtedness Not Impaired.
No right of any present or future holder of any Senior Indebtedness to
enforce the subordination herein shall at any time or in any way be
prejudiced or impaired by any act or failure to act on the part of the Issuer
or by any noncompliance by the Issuer with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
With respect to the holders of Senior Indebtedness, (a) the duties and
obligations of the Trustee shall be determined solely by the express
provisions of this Indenture, (b) the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set forth
in this Indenture, (c) no implied covenants or obligations shall be read into
this Indenture against the Trustee and (d) the Trustee shall not be deemed to
be a fiduciary as to such holders.
Section 13.10 Article Applicable to Paying Agents. In case at any time
any paying agent other than the Trustee shall have been appointed by the
Issuer and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context shall require otherwise) be
construed as extending to and including such paying agent within its meaning
as fully for all intents and purposes as if such paying agent were named in
this Article in addition to or in place of the Trustee, provided, however,
that Sections 13.07 and 13.08 shall not apply to the Issuer if it acts as its
own paying agent.
Section 13.11 Trustee; Compensation Not Prejudiced. Nothing in this
Article shall apply to claims of, or payments to, the Trustee pursuant to
Section 6.06.
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 ( ), 1998.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
(CORPORATE SEAL)
By:
-----------------------------------------
Name:
Title:
Attest:
By:
---------------------------
(Assistant Secretary)
THE BANK OF NEW YORK, TRUSTEE
By:
-----------------------------------------
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ of ________, 1998 before me personally came
, to me personally known, who, being by me duly sworn, did depose and
say that he resides at that he is
the of Morgan Stanley, Dean Witter, Discover & Co., one of the
corporations described in and which executed the above instrument; that he
knows the corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto
by like authority.
(NOTARIAL SEAL)
- -------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ of ________, 1998 before me personally came
, to me personally known, who, being by me duly sworn, did depose
and say that he resides at that he is
a Vice President of The Bank of New York, one of the corporations described
in and which executed the above instrument and that he signed his name
thereto by like authority.
(NOTARIAL SEAL)
- -------------------------
Notary Public
CROSS REFERENCE SHEET/F1/
Between
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as
of April 15, 1989 between MORGAN STANLEY, DEAN WITTER, DISCOVER & CO. and THE
BANK OF NEW YORK, Trustee:
Section of the Act Section of the Indenture
- -----------------------------------------------------------------------------
310(a)(1) and (2) . . . . . . 6.09
310(a)(3) and (4) . . . . . . Inapplicable
310(b) . . . . . . . . . . . . ? and 6.10(a), (b) and (d)
310(c) . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . (6.13(a) and (c)(1) and (2))
311(b) . . . . . . . . . . . . (6.13(b))
312(a) . . . . . . . . . . . . 4.01 and (4.2(a))
312(b) . . . . . . . . . . . . (4.2(a) and (b)(i) and (ii))
312(c) . . . . . . . . . . . . (4.2(c))
313(a) . . . . . . . . . . . . (4.4(a)(i), (ii), (iii), (iv), (v), (vi))
313(b)(1) . . . . . . . . . . Inapplicable
313(b)(2) . . . . . . . . . . 4.04
313(c) . . . . . . . . . . . . 4.04
313(d) . . . . . . . . . . . . 4.04
314(a) . . . . . . . . . . . . 4.03
314(b) . . . . . . . . . . . . Inapplicable
314(c)(1) and (2) . . . . . . 11.5
314(c)(3) . . . . . . . . . . Inapplicable
314(d) . . . . .. . . . . . . Inapplicable
314(e) . . . . . . . . . . . . 11.05
314(f) . . . . . . . . . . . . Inapplicable
315(a), (c) and (d) . . . . . 6.01
315(b) . . . . . . . . . . . . 5.11
315(e) . . . . . . . . . . . . 5.12
316(a)(1) . . . . . . . , . . 5.09
- --------------------
/F1/
This Cross Reference Sheet is not part of the Indenture.