Exhibit 4.2
CHEMICAL BANKING CORPORATION
TO
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
Trustee
-------------------
INDENTURE
Dated as of December 1, 1989
-------------------
CHEMICAL BANKING CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of , 1989
Trust Indenture
Act Section Indenture Section
- ---------------- -----------------
Section 310(a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 608
610
Section 311(a) 613(a)
(b) 613(b)
(b)(2) 703(a)(2)
(703)(b)
Section 312(a) 701
702(a)
(b) 702(b)
(c) 702(c)
Section 313(a) 703(a)
(b) 703(b)
(c) 703(a), 703(b)
(d) 703(c)
Section 314(a) 704
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
Section 315(a) 601(a)
(b) 602
703(a)(6)
(c) 601(b)
(d) 601(c)
(d)(1) 601(a)(1)
(d)(2) 601(c)(2)
(d)(3) 601(c)(3)
(e) 514
Section 316(a)
(1)(A) 502
512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
Section 317 (a)(1) 503
(a)(2) 504
(b) 1003
Section 318 (a) 107
TABLE OF CONTENTS
----------------
Page
Parties 1
Recitals Of The Company *
ARTICLE ONE
Definitions And Other Provisions Of General Application
Section 101. Definitions. *
Act...... *
Affiliate; control *
Attorney-in-Fact *
Authenticating Agent *
Bank..... *
Board of Directors *
Board Resolution *
Business Day *
Commission *
Company *
Company Request; Company Order *
Corporate Trust Office *
corporation *
covenant defeasance *
Defaulted Interest *
defeasance *
Depository *
Event of Default *
Global Security *
Holder *
Indebtedness for money borrowed *
Indenture *
interest *
Interest Payment Date *
Intermediate Subsidiary *
Maturity *
Officers' Certificate *
Opinion of Counsel *
Original Issue Discount Security *
Outstanding *
Payment Agent *
Person *
Place of Payment *
Predecessor Security *
Record Date *
Redemption Date *
Redemption Price *
Regular Record Date *
Responsible Officer *
Securities *
Security Register and Security Registrar *
Special Record Date *
Stated Maturity *
Subsidiary *
Trustee *
Trust Indenture Act *
U.S. Government Obligations *
Vice President *
Voting Stock *
Section 102. Compliance Certificates and Opinions. *
Section 103. Form of Documents Delivered to Trustee. *
Section 104. Acts of Holders. *
Section 105. Notices, Etc., to Trustee and Company. *
Section 106. Notice to Holders; Waiver. *
Section 107. Conflict with Trust Indenture Act. *
Section 108. Effect of Headings and Table of Contents.*
Section 109. Successors and Assigns. *
Section 110. Separability Clause. *
Section 111. Benefits of Indenture. *
Section 112. Governing Law. *
Section 113. Legal Holidays. *
ARTICLE TWO
Security Forms
Section 201. Forms Generally. *
Section 202. Form of Face of Security. *
Section 203. Form of Reverse of Security. *
Section 204. Additional Provisions Required in Global
Security. *
Section 205. Form of Trustee's Certificate of
Authentication. *
ARTICLE Three
The Securities
Section 301. Amount Unlimited; Issuable in Series. *
Section 302. Denominations. *
Section 303. Execution, Authentication, Delivery and
Dating. *
Section 304. Temporary Securities. *
Section 305. Registration, Registration of Transfer
and Exchange. *
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities. *
Section 307. Payment of Interest; Interest Rights
Preserved. *
Section 308. Persons Deemed Owners. *
Section 309. Cancellation. *
Section 310. Computation of Interest. *
ARTICLE FOUR
Satisfaction And Discharge
Section 401. Satisfaction and Discharge of Indenture. *
Section 402. Application of Trust Money. *
ARTICLE FIVE
Remedies
Section 501. Events of Default. *
Section 502. Acceleration of Maturity; Rescission and
Annulment. *
Section 503. Collection of Indebtedness and Suits for
Enforcement
by Trustee. *
Section 504. Trustee May File Proofs and Claim. *
Section 505. Trustee May Enforce Claims Without
Possession of Securities. *
Section 506. Application of Money Collected. *
Section 507. Limitation on Suits. *
Section 508. Unconditional Right of Holders to Receive
Principal, Premium
and Interest. *
Section 509. Restoration of Rights and Remedies. *
Section 510. Rights and Remedies Cumulative *
Section 511. Delay or Omission Not Waiver. *
Section 512. Control by Holders. *
Section 513. Waiver of Past Defaults. *
Section 514. Undertaking for Costs. *
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities. *
Section 602. Notice of Defaults. *
Section 603. Certain Rights of Trustee. *
Section 604. Not Responsible for Recitals or Issuance
of Securities. *
Section 605. May Hold Securities. *
Section 606. Money Held in Trust. *
Section 607. Compensation and Reimbursement. *
Section 608. Disqualifications; Conflicting Interests.*
(a) Elimination of Conflicting Interest or Resignation*
(b) Notice of Failure to Eliminate Conflicting Interest
or Resign *
(c) "Conflict of Interest" Defined *
(d) Definitions of Certain Terms Used in This Section *
(e) Calculation of Percentages of Securities *
Section 609. Corporate Trustee Required; Eligibility. *
Section 610. Resignation and Removal; Appointment of
Successor. *
Section 611. Acceptance of Appointment by Successor. *
Section 612. Merger, Conversion, Consolidation or
Succession to Business. *
Section 613. Preferential Collection of Claims Against
Company. *
(a) Segregation and Apportionment of Certain
Collections by
Trustee, Certain Exceptions *
(b) Certain Creditor Relationships Excluded from
Segregation
and Apportionment *
(c) Definition of Certain Terms Used in this Section *
Section 614. Appointment of Authenticating Agent. *
ARTICLE SEVEN
Holders' Lists And Reports By Trustee And Company
Section 701. Company to Furnish Trustee Names and
Addresses of Holders. *
Section 702. Preservation of Information;
Communications to Holders. *
Section 703. Reports by Trustee. *
Section 704. Reports by Company. *
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer Or Lease
Section 801. Company May Consolidate, Etc., Only on
Certain Terms. *
Section 802. Successor Corporation Substituted. *
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent
of Holders. *
Section 902. Supplemental Indentures with Consent of
Holders. *
Section 903. Execution of Supplemental Indentures. *
Section 904. Effect of Supplemental Indentures. *
Section 905. Conformity with Trust Indenture Act. *
Section 906. Reference in Securities to Supplemental
Indentures. *
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and
Interest. *
Section 1002. Maintenance of Office or Agency. *
Section 1003. Money for Securities Payments to Be Held
in Trust. *
Section 1004. Corporate Existence. *
Section 1005. Payment of Taxes and Other Claims. *
Section 1006. Limitation on Disposition of Stock of
Bank. *
Section 1007. Statement as to Compliance. *
Section 1008. Waiver of Certain Covenants. *
ARTICLE ELEVEN
Redemption Of Securities
Section 1101. Applicability of Article. *
Section 1102. Election to Redeem; Notice to Trustee. *
Section 1103. Selection by Trustee of Securities to Be
Redeemed. *
Section 1104. Notice of Redemption. *
Section 1105. Deposit of Redemption Price. *
Section 1106. Securities Payable on Redemption Date. *
Section 1107. Securities Redeemed in Part. *
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article. *
Section 1202. Satisfaction of Sinking Fund Payments
with Securities. *
Section 1203. Redemption of Securities for Sinking
Fund. *
ARTICLE THIRTEEN
Defeasance And Covenant Defeasance
Section 1301. Applicability of Article; Company's
Option to Effect Defeasance or Covenant
Defeasance. *
Section 1302. Defeasance and Discharge. *
Section 1303. Covenant Defeasance. *
Section 1304. Conditions to Defeasance or Covenant
Defeasance. *
Section 1305. Deposited Money and U.S. Government
Obligations to Be Held
in Trust; Other Miscellaneous Provisions. *
Testimonium *
Signatures And Seals *
Acknowledgments *
INDENTURE, DATED AS OF DECEMBER 1, 1989, BETWEEN CHEMICAL BANKING
CORPORATION, A CORPORATION DULY ORGANIZED AND EXISTING UNDER THE LAWS OF THE
STATE OF DELAWARE (HEREIN CALLED THE "COMPANY"), HAVING ITS PRINCIPAL OFFICE AT
277 PARK AVENUE, NEW YORK, NEW YORK 10172, AND THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
A NATIONAL BANKING ASSOCIATION DULY ORGANIZED AND EXISTING UNDER THE LAWS OF
THE UNITED STATES, AS TRUSTEE (HEREIN CALLED THE "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its unsecured debentures, notes or
other evidences of indebtedness (herein called the "Securities"), to be issued
in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the Securities by
the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
1.
Definitions and Other Provisions
of General Application
1. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
1. The terms defined in this Article have the meanings
assigned to them in this Article and include the
plural as well as the singular;
2. All other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
3. All accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with
generally accepted accounting principles, and, except
as otherwise herein expressly provided, the term
"generally accepted accounting principles" with
respect to any computation
required or permitted hereunder shall mean such
accounting principles as are generally accepted at the
date of such computation; and
4. The words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or
other subdivision.
Certain terms, used principally in Article Six, are
defined in that Article.
"Act", when used with respect to any Holder, has the
meaning specified in Section 104.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such
specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person
means the power to direct the management and policies of
such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
"Attorney-in-Fact" means an officer of the Bank who has
been duly appointed as an attorney-in-fact by the
Company.
"Authenticating Agent" means any Person authorized by
the Trustee to act on behalf of the Trustee to
authenticate Securities.
"Bank" means Chemical Bank, a banking corporation duly
organized and existing under the laws of the State of
New York, and its successors (whether by consolidation,
merger, conversion, transfer of substantially all their
assets and business or otherwise) so long as Chemical
Bank or any successor is a Subsidiary.
"Board of Directors" means either the board of directors
of the Company or any committee of that board duly
authorized to set hereunder or any directors or officers
of the Company or Attorneys-in-Fact to whom such board
of directors or such committee shall have duly delegated
its authority.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary
of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the
date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are
authorized or obligated by law to close.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created
under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such
Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in
the first paragraph of this instrument until a
successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by
its Chairman of the Board, a Vice Chairman, its
President, its Chief Financial Officer, a Vice
President or any Attorney-in-Fact, and by its
Controller, an Assistant Controller, its Secretary or
an Assistant Secretary and delivered to the Trustee.
"Corporate Trust Office" means the principal office of
the Trustee in the Borough of Manhattan, The City of
New York, at which at any particular time its
corporate trust business shall be administered, such
office being currently located at One New York Plaza,
New York, NY 10081.
"corporation" includes corporations, associations,
companies and business trusts.
"covenant defeasance" has the meaning specified in
Section 1303.
"Defaulted Interest" has the meaning specified in
Section 307.
"defeasance" has the meaning specified in Section
1302.
"Depository" means, with respect to the Securities of
any series issuable or issued in whole or in part in
the form of one or more Global Securities, the Person
designated as Depository by the Company pursuant to
Section 301.
"Event of Default" has the meaning specified in
Section 501.
"Global Security" means a Security in the form
prescribed in Section 204 evidencing all or part of a
series of Securities, issued to the Depository for
such series or its nominee, and registered in the name
of such Depository or nominee.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indebtedness for money borrowed", when used with
respect to the Company, means any obligation of, or
any obligation guaranteed by, the Company for the
repayment of borrowed money, whether or not evidenced
by bonds, debentures, notes or other written
instruments.
"Indenture" means this instrument as originally
executed or as it may from time to time be
supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the
terms or particular series of Securities established
as contemplated by Section 301.
"interest", when used with respect to an Original
Issue Discount Security which by its terms bears
interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment
of interest on such Security.
"Intermediate Subsidiary" has the meaning specified in
Section 1006.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security
or an instalment of principal becomes due and payable
as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for
redemption or otherwise.
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman, the
President, its Chief Financial Officer, a Vice
President or any Attorney-in-Fact, and by the
Controller, an Assistant Controller, the Secretary or
an Assistant Secretary, of the Company, and delivered
to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel who may be an employee of the Company or other
counsel to the Company.
"Original Issue Discount Security" means any Security
which provides for an amount less than the principal
amount thereof to be due and payable upon a
declaration of acceleration on the Maturity thereof
pursuant to Section 502.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this
Indenture, except:
i. Securities theretofore cancelled by the
Trustee or delivered to the Trustee for
cancellation;
ii. Securities for whose payment or
redemption money in the necessary amount
has been theretofore deposited with the
Trustee or any Paying Agent (other than
the Company) in trust or set aside and
segregated in trust by the Company (if
the Company shall act as its own Paying
Agent) for the Holders of such
Securities; provided that, if such
Securities are to
be redeemed, notice of such redemption
has been duly given pursuant to this
Indenture or provision therefore
satisfactory to the Trustee has been
made; and
iii. Securities which have been paid
pursuant to Section 306 or in exchange
for or in lieu of which other Securities
have been authenticated and delivered
pursuant to this Indenture, other than
any such Securities in respect of which
there shall have been presented to the
Trustee proof satisfactory to it that
such Securities are held by a bona fide
purchaser in whose hands such Securities
are valid obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, (i) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding shall be the
amount of the principal thereof that would be due and payable as of
the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a
Security denominated in a foreign currency or currency unit shall be
the U.S. dollar equivalent, determined as of the date of original
issuance of such Security, of the principal amount of such Security
(or, in the case of an Original Issue Discount Security denominated in
a foreign currency or currency unit, the U.S. dollar equivalent as of
the date of original issuance of such Security of the amount
determined as provided in (i) above), (iii) the principal amount of a
Security for which the amount of payments of principal of and any
premium or interest on such Security may be determined with reference
to an index shall be determined as of the date of original issuance of
such Security and (iv) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be
so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee established to the
satisfaction of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or
of such other obligor.
"Payment Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium,
if any) and interest on the Securities of that series are payable as
specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306
in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Record Date" means a Regular Record Date or a Special Record Date, as
the case may be.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board
of directors, the chairman of the trust committee, the president, any
vice president, the
secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any assistant controller or
any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and
also means, with respect to a particular corporation trust matter, any
other officer to whom such matter is referred because of his knowledge
of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of
such Security or such instalment of principal or interest is due and
payable.
"Subsidiary" means a corporation more than 50% of the outstanding
Voting Stock of which is owned, directly or indirectly, by the Company
or by one or more other Subsidiaries, or by the Company and one or
more other Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean or include each Person who is then
a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which the instrument was executed, except as
provided in Section 905.
"U.S. Government Obligations" has the meaning specified in Section
1304(1).
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice
president".
"Voting Stock" means stock of the class or classes having a general
voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of a corporation
(irrespective of whether or not at the time stock of any other class
or classes shall have or might have voting power by reason of the
happening of any contingency).
2. Compliance Certificates and Opinions.
Under any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in
the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
1. a statement that each individual signing such
certificate or opinion has read such covenant or
condition and the definitions herein relating
thereto;
2. a brief statement as to the nature and scope of
the examination or investigation upon which the
statements or opinions contained in such
certificate or opinion are based;
3. a statement that, in the opinion of each such
individual, he has made such examination or
investigation as is necessary to enable him to
express an informed opinion as to whether or not
such covenant or condition has been complied with;
and
4. a statement as to whether, in the opinion of each
such individual, such condition or covenant has
been complied with.
3. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other
matters, and any
such Person may certify or give an opinion as to such matters on one
or several documents.
Any certificate or opinion of an officer of, or
Attorney-in-Fact for, the Company may be based, insofar as it relates
to legal matters, upon a certificate or opinion of, or representations
by counsel, unless such officer or Attorney-in-Fact knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an
officer or officers of, or an Attorney-Fact or Attorneys-in-Fact for,
the Company stating that the information with respect to such factual
matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
4. Acts of Holders.
a. Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor
signed by such Holders in person or by 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 and, where it is
hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in
this Section.
b. The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary
public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting
in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority
of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
c. The ownership of Securities shall be proved by the Security
Register.
d. Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security
shall bind every future Holder of the same Security and the
Holder of every Security issued upon the registration of
transfer thereof or in exchange therefore or in lieu thereof
in respect of anything done, omitted or suffered to be done by
the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
5. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished in, or filed with,
1. the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee
at its Corporate Trust Office, Attention: Corporate
Trust Department, or
2. the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company
addressed to it, attention: Secretary, at the address
of its principal office specified in the first
paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the
Company.
6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holder 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. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to
have been duly given. 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 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 regular mail service or by
reason of any other cause it shall be impracticable to give one's
notice by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for
every purpose hereunder.
7. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by
any of the provisions of the Trust Indenture Act, such required
provision shall control.
8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
10. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
12. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
13. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of
the Securities) payment of interest or principal (and premium, if any) need
not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date or Redemption Date, or at
the Stated Maturity, provided that no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
2.
Security Forms
1. Forms Generally.
The Securities of each series shall be substantially in the form set
forth in this Article, or in such other form (including permanent
global form) as shall be established by or pursuant to a Board
Resolution 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 such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers of the Company or
any Attorney-in-Fact executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of any series
is established by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to
the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of
such Securities. If all of the Securities of any series established by
action taken pursuant to a Board Resolution are not to be issued at
one time, it shall not be necessary to deliver a record of such action
at the time of issuance of each Security of such series, but an
appropriate record of such action shall be delivered at or before the
time of issuance of the first Security of such series.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner
(provided that if any Securities are to be listed on any securities
exchange, then in such manner as may be permitted by the rules of any
such securities
exchange), all as determined by the officers of the Company or any
Attorney-in-Fact executing such Securities, as evidenced by their
execution of such Securities.
2. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder]
CHEMICAL BANKING CORPORATION
----------------------------------------------------------------------
No. _________ $_______
CHEMICAL BANKING CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the
"Company", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby
promises to pay to ____________________________, or registered
assigns, the principal sum of ________________________________________
Dollars on ______________________________________ [if the Security is
to bear interest prior to Maturity, insert , and to pay interest
thereon from _______________ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, [insert
appropriate period] or _________________ and _______________ in each
year, commencing ______________, at the rate of __% per annum, until
the principal hereof is paid or made available for payment [if
applicable, insert , and (to the extent that the payment of such
interest shall be legally enforceable) at the rate of __% per annum on
any overdue principal and premium [if applicable, insert and on any
overdue instalment of interest]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest, which shall be the ________ or _______ (whether or not
a Business Day), as the case may be, next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days
prior to such Special Record Date, or be paid at any time in any other
lawful manner
not inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully provided
in said Indenture]. [If the Security is not to bear interest prior to
Maturity, insert The principal of this Security shall not bear
interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case
the overdue principal of this Security shall bear interest at the rate
of __% per annum (to the extent that the payment of such interest
shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been
made or duly provided for. [Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal that is
not so paid on demand shall bear interest at the rate of __% per annum
(to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand].]
Payment of the principal of (and premium, if any) and [if applicable,
insert any such] interest on this Security will be made at the office
or agency of the Company maintained for that purpose in _____________,
in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private
debts [unless otherwise specifically provided with respect to the
Securities of the series, insert ; provided, however, that at the
option of the Company payment of interest may be made by check mailed
to the address of the Person entitled thereto as such address shall
appear in the Security Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, or an Authenticating
Agent, by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
In Witness Whereof, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
_________________________________________
By_______________________________________
Attest:
______________________________________
3. Form of Reverse of Security.
This Security is one of a duly authorized series of securities of the
Company (herein called the "Securities"), issued and to be issued in
one or more series under an Indenture, dated as of December 1, 1989
(herein called the "Indenture"), between the Company and the Chase
Manhattan Bank (National Association), as Trustee (herein called the
"Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face
hereof [, limited in aggregated principal amount to $________].
[If applicable, insert The Securities of this series are subject to
redemption upon not less than 30 days' nor more than 60 days' notice
by mail [if applicable, insert (1) on ________________ in any year
commencing with the year _________ and ending with the year __________
through operation of the sinking fund for this series at a Redemption
Price equal to 100% of the principal amount, and (2)] at any time [on
or after ______________, 19__], as a whole or in part, at the election
of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [on or before
______________, __%, and if redeemed] during the 12-month period
beginning ______________ of the years indicated,
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
And thereafter at a Redemption Price equal to __% of the principal
amount, together in the case of any such redemption [if applicable,
insert (whether through operation of the sinking fund or otherwise)]
with accrued interest to the Redemption Date, but interest instalments
whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Regular
Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert The Securities of this series are subject to
redemption upon not less than 30 days' nor more than 60 days' notice
by mail (1) on _____________ in any year commencing with the year
________ and ending with the year ________ through operation of the
sinking fund for this series at the Redemption Prices for redemption
through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below, and (2) at any time
[on or after _____________], as a whole or in part, at the election of
the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the
12-month period beginning ________________ of the years indicated,
REDEMPTION PRICE
FOR REDEMPTION REDEMPTION PRICE FOR
THROUGH OPERATION REDEMPTION OTHERWISE
OF THE THEN THROUGH OPERATION
YEAR SINKING FUND OF THE SINKING FUND
and thereafter at a Redemption Price equal to __% of the principal
amount, together in the case of any such redemption (whether through
operation of the sinking fund or otherwise) with accrued interest to
the Redemption Date, but interest instalments whose Stated Maturity is
on or prior to such Redemption Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Regular Record Dates referred to
on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
________________, redeem any Securities of this series as contemplated
by [Clause (2) of] the preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application, directly
or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial
practices) of less than __% per annum.]
[The sinking fund for this series provides for the redemption on
_____________ in each year beginning with the year _______ and ending
with the year ________of [not less than] $_______ [("mandatory sinking
fund") and not more than $________] aggregate principal amount of
Securities of this series. [Securities of this series acquired or
redeemed by the Company otherwise than through [mandatory] sinking
fund payments may be credited against subsequent [mandatory] sinking
fund payments otherwise required to be made [if applicable, insert in
the inverse order in which they become due].]
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the
unredeemed portion
hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
[If applicable, insert The Indenture contains provisions for
defeasance at any time of [(a)] [the entire indebtedness evidenced by
this Security] [and (b)] certain restrictive covenants,] [in each
case] upon compliance by the Company with certain conditions set forth
therein, which provisions apply to this Security.]
[If the Security is not an Original Issue Discount Security, insert If
an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the securities of this
series may be declared due and payable in the manner and with the
effect provided in the Indenture.] [If the Security is an Original
Issue Discount Security, insert If an Event of Default with respect to
Securities of this series shall occur and be continuing, an amount of
principal of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the Indenture.
Such amount shall be equal to insert formula for determining the
amount.] Upon payment (i) of the amount of principal so declared due
and payable and (ii) of interest on any overdue principal and overdue
interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in
respect of the payment of the principal of and interest, if any, on
the Securities of this series shall terminate.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of
a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon
this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of
(and premium if any)
and interest (if any) on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of (and premium, if any) and interest (if any) on this
Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Securities
of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $_______ and any integral multiple
thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of
this series of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered
as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall
be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
4. Additional Provisions Required in Global Security.
Any Global Security issued hereunder shall, in addition to the
provisions contained in Sections 202 and 203, bear a legend in
substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depository or a
nominee of a Depository. This Security is exchangeable for Securities
registered in the name of a person other than the Depository or its
nominee only in the limited circumstances described in the Indenture
and may not be transferred except as a whole by the Depository to a
nominee of the depository or by a nominee of the Depository to the
Depository or another nominee of the Depository.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, any Global Security shall provide, in
addition to the provisions set forth in Sections 202 and 203 and the
preceding paragraph, that the Depository will not sell, assign,
transfer or otherwise convey any beneficial interest in such Global
Security unless such beneficial interest is in an amount equal to an
authorized denomination for Securities of such series, and that the
Depository, by accepting such Global Security, agrees to be bound by
such provision.
5. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
as Trustee
By____________________________________
Authorized Officer
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
as Trustee
By Chemical Bank
Authenticating Agent
By____________________________________
Authorized Signer
3.
The Securities
1. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to
Section 303, set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any
series,
1. the title of the Securities of the series (which shall
distinguish the Securities of the series from all
other Securities);
2. any limit upon the aggregate principal amount or the
aggregate initial offering price of the Securities of
the series which may be authenticated and delivered
under this Indenture (except for Securities
authenticated and delivered upon registration of,
transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305,
906 or 1107 and except for any Securities which,
pursuant to Section 303, shall not have been issued
and sold by the Company and are therefore deemed never
to have been authenticated and delivered hereunder);
3. the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on
the Regular Record Date for such interest;
4. the date or dates on which the principal of the
Securities of the series is payable; the provisions,
if any, for extension of such date or dates;
5. the rate or rates (or the formula pursuant to which
such rate or rates shall be determined) at which the
Securities of the series shall bear interest, if any,
including that rate of interest applicable to overdue
payments of principal, and the rate of interest, if
any, applicable to overdue payments of interest if
different from the rate of interest stated in the
title of the Security; the date or dates from which
such interest shall accrue, the Interest Payment Dates
on which such interest shall be payable and the
Regular Record Date for the interest payable on any
Interest Payment Date;
6. the place or places where the principal of (and
premium, if any) and interest, if any, on the
Securities of the series shall be payable;
7. if applicable, the period or periods within which, the
price or prices at which and the terms and conditions
upon which Securities of the series may be redeemed,
in whole or in part, at the option of the Company;
8. the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any
sinking fund or analogous provisions or at the option
of a Holder thereof and the period or periods within
which, the price or prices at which and the terms and
conditions upon which Securities of the series shall
be redeemed or purchased, in whole or in part,
pursuant to such obligation;
9. if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which
Securities of the series shall be issuable;
10. if other than the currency of the United States, the
currency or currencies, including composite
currencies, in which payment of the principal of and
any premium and interest on the Securities of the
series shall be payable, which may be different for
principal, premium, if any, and interest;
11. if the principal of (and premium, if any) or interest,
if any, on the Securities of the series are to be
payable, at the election of the Company or a Holder
thereof, in a currency or currencies other than that
in which the Securities are stated to be payable, the
currency or currencies in which payment of the
principal of (and premium, if any) or interest, if
any, on Securities of such series as to which such
election is made shall be payable, and the period or
periods within which, and the terms and conditions
upon which, such election may be made;
12. if the amount of payments of principal of and any
premium or interest on the Securities of the series
may be determined with reference to an index, the
manner in which such amounts shall be determined;
13. 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 pursuant to
Section 502;
14. any Event of Default with respect to the Securities of
the series, if not set forth herein;
15. the application, if any, of either or both of Section
1302 and Section 1303 to the Securities of the series.
16. whether the Securities of the series shall be issued
in whole or in part in the form of one or more Global
Securities and,
in such case, the Depository for such Global Security
or Securities, which Depository shall be, if then
required by applicable law or regulation, a clearing
agency registered under the Securities Exchange Act of
1934, as amended; and
17. any other terms of the series (which terms shall not
be inconsistent with the provisions of this
Indenture), including any covenants to be applicable
to Securities of such series if not set forth herein.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to
Section 303) set forth in the Officers' Certificate referred to above
or in any such indenture supplemental hereto. All Securities of any
one series need not be issued at one time, and unless otherwise
provided, a series may be reopened for issuances of additional
Securities of such series.
Unless otherwise specifically provided with respect to the Securities
of a series, at the option of the Company, interest on the Securities
of any series that bears interest may be paid by mailing a check to
the address of the person entitled thereto as such address shall
appear in the Security Register.
If any of the terms of Securities of a series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate setting forth the
terms of the Securities of such series. If all of the Securities of
any series established by action taken pursuant to a Board Resolution
are not to be issued at one time, it shall not be necessary to deliver
a record of such action at the time of issuance of each Security of
such series, but an appropriate record of such action shall be
delivered at or before the time of issuance of the First Security of
such series.
2. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in each denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions
with respect to the Securities of any particular series, the
Securities of such series shall be issuable in denominations of $1,000
and any integral multiple thereof.
3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, one of its Vice Chairman, its President, its
Chief Financial Officer or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on
the Securities may be manual or facsimiles.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices a the date of such
Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee or the Authenticating Agent for
authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee or the Authenticating
Agent in accordance with the Company Order shall authenticate and make
available for delivery such Securities. If all of the Securities of
any series are not to be issued at one time and if the Board
Resolution or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms
of particular Securities of such series, such as interest rate,
maturity date, date of issuance and date from which interest shall
accrue. In authenticating Securities of any series, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee or the Authenticating Agent, as the case may
be, shall be entitled to receive, and (subject to Section 601) shall
be fully protected in relying upon, an Opinion of Counsel stating,
a. if the form of such Securities has been
established by or pursuant to a Board
Resolution as permitted by Section 201,
that such form has been established in
conformity with the provisions of this
Indenture;
b. if the terms of such Securities have
been established by or pursuant to a
Board Resolution as permitted by Section
301, that such terms have been
established in conformity with the
provisions of this Indenture; and
c. that such Securities, when authenticated
and delivered by the Trustee and issued
by the Company
in the manner and subject to any
conditions specified in such Opinion of
Counsel, will constitute valid and
legally binding obligations of the
Company, enforceable in accordance with
their terms, subject to bankruptcy,
insolvency, fraudulent transfer,
reorganization, moratorium and similar
laws of general applicability relating
to or affecting creditors' rights and to
general equity principles and, if
applicable, to provisions of law which
may require that a judgment for money
damages rendered by a court in the
United States be expressed in Unites
States dollars.
If such forms or terms have been so established, the Trustee or the
Authenticating Agent, as the case may be, shall not be required to
authenticate such Securities if the issue of such Securities pursuant
to this Indenture will affect the Trustee's or the Authenticating
Agent's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee or the Authenticating Agent.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the Company
Order and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the time of authentication of each
Security of such series if such documents are delivered at or prior to
the time of authentication upon original issuance of the first
Security of such series to be issued. After the original issuance of
the first Security of such series to be issued, any separate request
by the Company that the Trustee authenticate Securities of such series
for original issuance will be deemed to be a certification by the
Company that it is in compliance with all conditions precedent
provided for in this Indenture relating to the authentication and
delivery of such Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form
provided for herein
executed by the Trustee or the Authenticating Agent by manual
signature, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits
of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security
to the Trustee for cancellation as provided in Section 309 together
with a written statement (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
4. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee or the
Authenticating Agent shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, reproduced or
otherwise produced, in any authorized denomination, substantially of
the tenor of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions
and other variations of the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of
such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender
of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to
the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute, and the
Trustee shall authenticate and make available for delivery, in
exchange therefor a like principal amount of definitive Securities of
the same series and tenor of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive
Securities of such series.
5. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the corporate trust office of
the Security Registrar designated pursuant to this Section 305 a
register (the register maintained in such office being herein
sometimes referred to as
the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Bank is
hereby initially appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any
authorized denominations and of a like tenor and aggregate principal
amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized
denominations and of a like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and make available
for delivery, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1107
not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening
of business 15 days before any selection for redemption of Securities
of like tenor and of the series of which such Security is a part and
ending at the close of business on the earliest date on which the
relevant notice of redemption is deemed to have been given to all
Holders of Securities of such series to be redeemed, or (ii) to
register the transfer of or exchange
any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, any Global Security representing a
series of Securities shall be exchangeable pursuant to this Section
305 for Securities registered in the names of Persons other than the
Depository or its nominee only if (i) subject to any other terms of
the series applicable to such Global Security, such Depository
notifies the Company that it is unwilling or unable to continue as
Depository for such Global Security or if at any time such Depository
ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, at a time when such Depository is
required to be so registered to act as such Depository, (ii) the
Company executes and delivers to the Trustee a Company Order that such
Global Security shall be so exchangeable or (iii) there shall have
occurred and be continuing an Event of Default or an event which, with
the giving of notice or lapse of time, or both, would constitute an
Event of Default with respect to the Securities. Any Global Security
that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Securities registered in such names as such
Depository shall direct.
Notwithstanding any other provision in this Indenture, a Global
Security may not be transferred except as a whole by the Depository
with respect to such Global Security to a nominee of such Depository
or by a nominee of such Depository to such Depository or another
nominee of such Depository. Unless otherwise provided as contemplated
by Section 301 with respect to any series of Securities evidenced in
whole or in part by a Global Security, the Depository may not sell,
assign, transfer or otherwise convey any beneficial interest in a
Global Security evidencing all or part of the Securities of such
series unless such beneficial interest is in an amount equal to an
authorized denomination for Securities of such series.
6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of
any Security and (ii) such security or indemnify as may be required by
them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall authenticate and make
available for delivery, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security of the same series,
pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other
Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities.
7. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in Clause (1)
or (2) below:
1. The Company may elect to make payment of any Defaulted
Interest to the Person or Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of
such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted
Interested and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
2. The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange
on which such Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to
this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights
to interest accrued and unpaid, and to accrue, which were carried by
such other Security.
8. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the
owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 307)
interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected
by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of
the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by a Depository
or impair, as between a Depository and holders of beneficial interests
in any Global Security, the operation of customary practices governing
the exercise of the rights of the Depositary as Holder of such Global
Security.
9. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment
shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which
the Company has not issued and sold, and all Securities so delivered
shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled
as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be
destroyed by the Trustee and a certificate of destruction shall be
delivered to the Company.
10. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
4.
Satisfaction and Discharge
1. Satisfaction and Discharge of Indenture.
This Indenture shall upon request by the Company cease to be of
further effect (except as to any surviving rights of registration of
transfer or exchange of Securities herein expressly provided for), and
the Trustee, upon Company Request and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
1. either
A. all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as
provided in Section 306 and (ii) Securities for whose
payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
B. all such Securities not theretofore delivered to the
Trustee for cancellation
i. have become due and payable, or
ii. will become due and payable at their Stated
Maturity within one year, or
iii. are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice of redemption
by the Trustee in the name, and at the
expenses of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of
such deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
2. the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
3. the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section
614 and, if money or U.S. Government Obligations shall have been
deposited with the Trustee (or another trustee satisfying the
conditions of Section 609) in accordance with Section 1302, the
obligations of the Company to the Trustee (or other qualifying
trustee) under the fourth paragraph of Section 1305, and, if money
shall have been deposited with the Trustee pursuant to subclause (B)
of clause (1) of this Section, the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003 shall survive.
2. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest, if any, for whose payment such money has been deposited
with the Trustee; but such money need not be segregated from other funds
except as required by law.
5.
Remedies
1. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
1. default in the payment of interest, if any, upon any
Security of that series when it becomes due and payable,
and continuance of such default for a period of 30 days;
or
2. default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
3. default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series and
continuance of such default for a period of 5 days; or
4. default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or any Security
of that series (other than a covenant or warranty a
default in
whose performance or whose breach is elsewhere in this
Section specifically death with or which has expressly
been included in this Indenture solely for the benefit of
series of Securities other than that series), and
continuance of such default or breach for a period of 60
days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach
and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder, or
5. a default under any bond, debenture, notice or other
evidence of indebtedness for money borrowed by the Company
(including a default with respect to Securities of any
series other than that series) or under any mortgage,
indenture or instrument under which there may be issued or
by which there may be secured or evidenced any
indebtedness for money borrowed by the Company (including
this Indenture), whether such indebtedness now exists or
shall hereafter be created, which default shall have
resulted (i) in a failure to pay an aggregate principal
amount exceeding $25,000,000 of such indebtedness for
money borrowed at the later of final maturity or upon the
expiration of any applicable period of grace with respect
to such principal amount, or (ii) in such indebtedness for
money borrowed in an aggregate principal amount exceeding
$25,000,000 becoming or being declared due and payable
prior to the date on which it would otherwise have become
due and payable, without such indebtedness having been
discharged, or such acceleration having been rescinded or
annulled, within a period of 30 days after there shall
have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice
specifying such default and requiring the Company to cause
such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that
such notice is a "Notice of Default" hereunder; provided,
however, that, subject to the provisions of Sections 601
and 602, the Trustee shall not be deemed to have knowledge
of such default unless either (A) a Responsible Officer of
the Trustee shall have actual knowledge of such default or
(B) the Trustee shall have received written notice thereof
from the Company, from any Holder, from the holder of any
such indebtedness for money borrowed or from the trustee
under any such mortgage, indenture or other instrument;
and provided, further, that any such default shall not be
deemed to have occurred if and so long as the Company
shall contest the validity thereof in good faith by
appropriate proceedings; or
6. the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the
Company or the Bank in an involuntary case or proceeding
under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a
decree or order appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other
similar official of the Company or the Bank or of all or
substantially all of their respective property, or
ordering the winding up or liquidation of their respective
affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and
in effect for a period of 60 consecutive days; or
7. the commencement by the Company or the Bank of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar
law or the consent by either to the filing of such
petition or to the appointment of or taking possession by
a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or the
Bank or of all or substantially all of their respective
property, or the making by either of an assignment for the
benefit of creditors, or the admission by either in
writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the
Company or the Bank in furtherance of any such action; or
8. any other Event of Default provided with respect to
Securities of that series.
Upon receipt by the Trustee of any Notice of Default pursuant to
Section 501(4) or Section 501(5) with respect to Securities of a
series all or part of which is represented by a Global Security, a
record date shall be established for determining Holders of
Outstanding Securities of such series entitled to join in such Notice
of Default, which record date shall be at the close of business on the
day the Trustee receives such Notice of Default. The Holders on such
record date, or their duly designated proxies, and only such Persons,
shall be entitled to join in such Notice of Default, whether or not
such Holders remain Holders after such record date; provided, that
unless Holders of at least 10% in principal amount of the Outstanding
Securities of such series, or their proxies, shall have joined in
such Notice of Default prior to the date which is 90 days after such
record date, such Notice of Default shall automatically and without
further action by any Holder be canceled and of no further effect.
Nothing in this paragraph shall prevent a Holder, or a proxy of a
Holder, from giving, after expiration of such 90-day period, a new
Notice of Default which is identical to a Notice of Default which has
been canceled pursuant to the proviso to the preceding sentence, in
which event a new record date shall be established pursuant to the
provisions of this Section 501.
2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series may declare the principal
amount (or, if the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all of the Securities of
that series to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall
become immediately due and payable, except that no such declaration
shall be required upon the occurrence of an Event of Default specified
in Section 501(7).
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that series, by
written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences, and any Event of Default giving
rise to such declaration shall not be deemed to have occurred, if
1. the Company has paid or deposited with the Trustee a sum
sufficient to pay
A. all overdue interest on all Securities of that
series,
B. the principal of (and premium, if any, on) any
Securities of that series which have become due
otherwise than by such declaration of acceleration
and interest thereon at the rate or rates
prescribed therefor in such Securities,
C. to the extent that payment of such interest is
lawful, interest, if any, upon overdue interest
at the rate or rates prescribed therefor in such
Securities, and
D. all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its
agents and counsel;
and
1. all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of
Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as
provided in Section 513 or otherwise remedied.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of any written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to Securities of
a series all or part of which is represented by a Global Security, a record date
shall be established for determining Holders of Outstanding Securities of such
series entitled to join in such notice, which record date shall be at the close
of business on the day the Trustee receives such notice. The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided, that unless such declaration of acceleration,
or rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having joined in such notice prior to the day
which is 90 days after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, after expiration of each 90-day period, a new written
notice of declaration of acceleration, or rescission or annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 502.
1. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
1. default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default
continues for a period of 30 days,
2. default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof, or
3. default is made in the making or satisfaction of any sinking
fund payment or analogous obligation when the same becomes due
pursuant to the terms of any Security and such default
continues for 5 days;
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal, including any sinking
fund payment or analogous obligations (and premium, if any) and
interest and, to the extent that the payment of such interest shall be
legally enforceable, interest on any overdue principal including any
sinking fund payment or analogous obligations (and premium, if any)
and on any overdue interest, at the rate or rates prescribed therefor
in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or final decree
and may enforce the same against the Company or any other obligor upon
such Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the
Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of
Securities of such series by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
2. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein
expressed or by
declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
i. to file and prove a claim for the
whole amount of principal (and
premium, if any) and interest, if any,
owing and unpaid in respect of the
Securities of all series and to file
such other papers or documents as may
be necessary or advisable in order to
have the claims of the Trustee
(including any claim for the
reasonable compensation, expenses,
disbursements and advances of the
Trustee, its agents and counsel) and
of the Holders allowed in such
judicial proceeding, and
ii. to collect and receive any moneys or
other property payable or deliverable
on any such claims and to distribute
the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or compensation
affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in
any such proceeding.
3. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name and as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been
recovered.
4. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, if any, upon presentation
of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
607; and
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest, if any, on the
Securities in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, if any, respectively.
5. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
1. such Holder has previously given written notice to the
Trustee of a continuing Event of Default or an event
which, with the giving of notice or lapse of time, or
both, would constitute an Event of Default with respect to
the Securities of that series;
2. the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as
Trustee hereunder;
3. such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such
request;
4. the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any
such proceeding; and
5. no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the
Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders, or to obtain or to
seek to obtain priority or preference over any other of such Holders
or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such
Holders.
6. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if
any) and (subject to Section 307) interest, if any, on such Security
on the Stated Maturity or Maturities expressed in such Security (or,
in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
7. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue as
though no such proceeding had been instituted.
8. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
9. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may
be.
10. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such series, provided that
1. such direction shall not be in conflict with any rule of
law or with this Indenture, and
2. the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any written notice directing the time,
method or place of conducting any such proceeding or exercising any
such trust or power with respect to Securities of a series all or part
of which is represented by a Global Security, a record date shall be
established for determining Holders of Outstanding Securities of such
series entitled to join in such notice, which record date shall be at
the close of business on the day the Trustee receives such notice. The
Holders on such record date, or their duly designated proxies, and
only such Persons, shall be entitled to join in such notice, whether
or not such Holders remain Holders after such record date; provided,
that unless Holders of a majority in principal amount of the
Outstanding Securities of such series shall have joined in such notice
prior to the day which is 90 days after such record date, such
notice shall automatically and without further action by any Holder be
canceled and of no further effect. Nothing in this paragraph shall
prevent a Holder, or a proxy of a Holder, from giving, after
expiration of such 90-day period, a new notice identical to a notice
which has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 512.
11. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of
all the Securities of such series waive any past default hereunder
with respect to such series and its consequences, except a default
1. in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series, or
2. in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive any past
default hereunder. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Person,
shall be entitled to waive any default hereunder, whether or not such
Holders remain Holders after such record date; provided, that unless
such majority in principal amount shall have waived such default prior
to the date which is 90 days after such record date, any such waiver
of such default previously given shall automatically and without
further action by any Holder be canceled and of no further effect.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other default or impair any right consequent
thereon.
12. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security 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
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest, if any, on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case or redemption, on or
after the Redemption Date).
1.
The Trustee
1. Certain Duties and Responsibilities.
a. Except during the continuance of an Event of Default,
1. the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
2. in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any
such certificates or opinions which by any 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. In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his
own affairs.
c. No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own wilful misconduct,
except that
1. this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
2. the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
3. the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders
of a majority
in principal amount of the Outstanding Securities of
any series, determined as provided in Section 512,
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 with respect to
the Securities of such series; and
4. no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is
not reasonably assured to it.
d. Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
2. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder known to
the Trustee with respect to the Securities of any series, the Trustee
shall transmit by mail to all Holders of Securities of such series, as
their names and addresses appear in the Security Register, notice of
such default hereunder, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in
the payment of the principal of (or premium, if any) or interest on
any Security of such series or in the payment of any sinking fund
instalment with respect to Securities of such series, the Trustee
shall be protected in the withholding such notice if and so long as
the board of directors, the executive committee or a trust committee
of directors or Responsible Officers of the Trustee in good faith
determine that withholding of such notice is in the interest of the
Holders of Securities of such series; and provided, further, that in
the case of any default of the character specified in Section 501(4)
with respect to Securities of such series, no such notice to Holders
shall be given until at least 60 days after the occurrence thereof.
For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
3. Certain Rights of Trustee.
Subject to the provisions of Section 601:
a. the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
b. any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
c. whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder,
the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate;
d. the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;
e. the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction;
f. the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by
agent or attorney; and
g. the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder.
4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the
statements of the Company, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or
of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the
use or application by the Company of Securities or the proceeds
thereof.
5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Company
with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other
agent.
6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
7. Compensation and Reimbursement.
The Company agrees
1. to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an
express trust);
2. except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
3. to indemnify the 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 the
trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or
liability in connection with the exercise or performance
of any of its powers or duties hereunder.
8. Disqualifications; Conflicting Interests.
a. If the Trustee has or shall acquire any conflicting interest,
as defined in this Section, with respect to the Securities of
any series, it shall, within 90 days after ascertaining that
it has such conflicting interest, either eliminate such
conflicting interest or resign with respect to the Securities
of that series in the manner and with the effect hereinafter
specified in this Article.
b. In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to
the Securities of any series, the Trustee shall, within 10
days after the expiration of such 90-day period, transmit by
mail to all Holders of Securities of that series, as their
names and addresses appear in the Security Register, notice of
such failure.
c. For the purposes of this Section, the Trustee shall be deemed
to have a conflicting interest with respect to the Securities
of any series if
1. the Trustee is trustee under this Indenture with
respect to the Outstanding Securities of any series
other than that series or is trustee under another
indenture under which any other securities, or
certificates of interest or participation in any other
securities, of the Company are outstanding, unless
such other indenture is a collateral trust indenture
under which the only collateral consists of Securities
issued under this Indenture, provided that there shall
be excluded from the operation of this paragraph this
Indenture with respect to the Securities of any series
other than that series, the Indenture dated as of
November 1, 1982, as supplemented, between the Company
and the Trustee, under which the Company's Medium Term
Notes at various rates and with various maturity
dates, Step-Down Floating Rate Notes due 1990, 9-1/2%
Notes due 1991, and 9.55% Senior Notes due 1993 are
outstanding as of the date hereof or any other
indenture or indentures under which other securities,
or certificates of interest or participation in other
securities, of the Company are outstanding, if
i. this Indenture and such other indenture or
indentures are wholly unsecured and such
other indenture or indentures are
hereafter qualified under the Trust
Indenture Act, unless the Commission shall
have found and declared by order pursuant
to Section 305(b) or Section 307(c) of the
Trust Indenture Act that differences exist
between the provisions of this Indenture
with respect to Securities of that series
and one or more other series or the
provisions of such other indenture or
indentures which are so likely to involve
a
material conflict of interest as to make
it necessary in the public interest or for
the protection of investors to disqualify
the Trustee from acting as such under this
Indenture with respect to the Securities
of that series and such other series or
under such other indenture or indentures,
or
ii. the Company shall have sustained the
burden of proving, on application to the
Commission and after opportunity for
hearing thereon, that trusteeship under
this Indenture with respect to the
Securities of that series and such other
series or such other indenture or
indentures is not so likely to involve a
material conflict of interest as to make
it necessary in the public interest or for
the protection of investors to disqualify
the Trustee from acting as such under this
Indenture with respect to the Securities
of that series and such other series or
under such other indenture or indentures;
2. the Trustee or any of its directors or executive officers
is an obligor upon the Securities or an underwriter for
the Company;
3. the Trustee directly or indirectly controls or is directly
or indirectly controlled by or is under direct or indirect
common control with the Company or an underwriter for the
Company;
4. the Trustee or any of its directors or executive officers
is a director, officer, partner, employee, appointee or
representative of the Company, or of an underwriter (other
than the Trustee itself) for the Company who is currently
engaged in the business of underwriting, except that (i)
one individual may be a director or an executive officer,
or both, of the Trustee and a director or an executive
officer, or both, of the Company but may not be at the
same time an executive officer of both the Trustee and the
Company; (ii) if and so long as the number of directors of
the Trustee in office is more than nine, one additional
individual may be a director or an executive officer, or
both, of the Trustee and a director of the Company; and
(iii) the Trustee may be designated by the Company or by
any underwriter for the Company to act in the capacity of
transfer agent, registrar, custodian, paying agent, fiscal
agent, escrow agent or depositary, or in any other similar
capacity, or, subject to
the provisions of paragraph (1) of this Subsection, to act
as trustee, whether under an indenture or otherwise;
5. 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any
director, partner or executive officer thereof, or 20% or
more of such voting securities is beneficially owned,
collectively, by any two or more of such persons; or 10%
or more of the voting securities of the Trustee is
beneficially owned either by an underwriter for the
Company or by any director, partner or executive officer
thereof, or is beneficially owned, collectively, by any
two or more such persons;
6. the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default
(as hereinafter in this Subsection defined), (i) 5% or
more of the voting securities, or 10% or more of any other
class of security, of the Company not including the
Securities issued under this Indenture and securities
issued under any other indenture under which the Trustee
is also trustee, or (ii) 10% or more of any class of
security of an underwriter for the Company;
7. the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default
(as hereinafter in this Subsection defined), 5% or more of
the voting securities of any person who, to the knowledge
of the Trustee, owns 10% or more of the voting securities
of, or controls directly or indirectly or is under direct
or indirect common control with, the Company;
8. the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default
(as hereinafter in this Subsection defined), 10% or more
of any class of security of any person who, to the
knowledge of the Trustee, owns 50% or more of the voting
securities of the Company; or
9. the Trustee owns, on May 15 in any calendar year, in the
capacity of executor, administrator, testamentary or inter
vivos trustee, guardian, committee or conservator, or in
any other similar capacity, an aggregate of 25% or more of
the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage
of which would have constituted a conflicting interest
under paragraph (6), (7) or (8) of this Subsection. As to
any such securities of which the Trustee acquired
ownership through becoming executor, administrator or
testamentary trustee of an estate which included them, the
provisions of the preceding sentence shall not apply, for
a period of two years from the date of such acquisition,
to the extent that
such securities included in such estate do not exceed 25%
of such voting securities or 25% of any such class of
security. Promptly after May 15 in each calendar year, the
Trustee shall make a check of its holdings of such
securities in any of the above-mentioned capacities as of
such May 15. If the Company fails to make payment in full
of the principal of (or premium, if any) or interest on
any of the Securities when and as the same becomes due and
payable, and such failure continues for 30 days
thereafter, the Trustee shall make a prompt check of its
holdings of such securities in any of the above-mentioned
capacities as of the date of the expiration of such 30-day
period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such securities so held
by the Trustee, with sole or joint control over such
securities vested in it, shall, but only so long as such
failure shall continue, be considered as though
beneficially owned by the Trustee for the purposes of
paragraphs (6), (7) and (8) of this Subsection.
The specification of percentages in paragraphs (5) to (9),
inclusive, of this Subsection shall not be construed as indicating
that the ownership of such percentages of the securities of a
person is or is not necessary or sufficient to constitute direct
or indirect control for the purposes of paragraph (3) or (7) of
this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall
include only such securities as are generally known as corporate
securities, but shall not include any note or other evidence of
indebtedness issued to evidence an obligation to repay moneys lent
to a person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such
note or evidence of indebtedness; (ii) an obligation shall be
deemed to be "in default" when a default in payment of principal
shall have continued for 30 days or more and shall not have been
cured; and (iii) the Trustee shall not be deemed to be the owner
or holder of (A) any security which it holds as collateral
security, as trustee or otherwise, for an obligation which is not
in default as defined in clause (ii) above, or (B) any security
which it holds as collateral security under this Indenture,
irrespective of any default hereunder, or (C) any security which
it holds as agent for collection, or as custodian, escrow agent or
depositary, or in any similar representative capacity.
d. For the purposes of this Section:
1. The term "underwriter", when used with reference to the
Company, means every person who, within three years prior
to the time as of which the determination is made, has
purchased from the Company with a view to, or has offered
or sold for the Company in connection with, the
distribution of any security of the Company outstanding at
such time, or has participated or has had a direct or
indirect participation in any such undertaking, or has
participated or has had a participation in the direct or
indirect underwriting of any such undertaking, but such
term shall not include a person whose interest was limited
to a commission from an underwriter or dealer not in
excess of the usual and customary distributors' or
sellers' commission.
2. The term "director" means any director of a corporation or
any individual performing similar functions with respect
to any organization, whether incorporated or
unincorporated.
3. The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a
trust, an unincorporated organization or a government or
political subdivision thereof. As used in this paragraph,
the term "trust" shall include only a trust where the
interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
4. The term "voting security" means any security presently
entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any
security issued under or pursuant to any trust, agreement
or arrangement whereby a trustee or trustees or agent or
agents for the owner or holder of such security are
presently entitled to vote in the direction or management
of the affairs of a person.
5. The term "Company" means any obligor upon the Securities.
6. The term "executive officer" means the president, every
vice president, every trust officer, the cashier, the
secretary and the treasurer of a corporation, and any
individual customarily performing similar functions with
respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the
board of directors.
e. The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with
the following provisions:
1. A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in
this Section (each of whom is referred to as a "person" in
this paragraph) means such amount of the outstanding
voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the
aggregate votes which the holders of all the outstanding
voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.
2. A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of
securities of the class outstanding.
3. The term "amount," when used in regard to securities,
means the principal amount if relating to evidences of
indebtedness, the number of shares if relating to capital
shares and the number of units if relating to any other
kind of security.
4. The term "outstanding" means issued and not held by or for
the account of the issuer. The following securities shall
not be deemed outstanding within the meaning of this
definition:
i. securities of an issuer held in a sinking
fund relating to securities of the issuer
of the same class;
ii. securities of an issuer held in a sinking
fund relating to another class of
securities of the issuer, if the
obligation evidenced by such other class
of securities is not in default as to
principal or interest or otherwise;
iii. securities pledged by the issuer thereof
as security for an obligation of the
issuer not in default as to principal or
interest or otherwise; and
iv. securities held in escrow if placed in
escrow by the issuer thereof;
provided, however, that any voting securities of an issuer
shall be deemed outstanding if any person other than the
issuer is entitled to exercise the voting rights thereof.
5. A security shall be deemed to be of the same class as
another security if both securities confer upon the holder
or holders thereof substantially the same rights and
privileges; provided, however, that, in the case of
secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest
rates or maturity dates of various series thereof shall
not be deemed sufficient to constitute such series
different classes and provided, further, that, in the case
of unsecured evidences of indebtedness, differences in the
interest rates or maturity
dates thereof shall not be deemed sufficient to constitute
them securities of different classes, whether or not they
are issued under a single indenture.
9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of a least $50,000,000 subject to
supervision or examination by Federal or State authority and having
its Corporate Trust Office in the Borough of Manhattan, The City of
New York. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising
or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
10. Resignation and Removal; Appointment of Successor.
a. No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of
Section 611.
b. The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 611 shall not have been
delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such
series.
c. The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such
series, delivered to the Trustee and to the Company.
d. If at any time:
1. the Trustee shall fail to comply with Section 608(a)
after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a
Security for at least six months, or
2. the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
3. the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or
any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution
may remove the Trustee with respect to all securities, or (ii)
subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor
Trustee or Trustees.
e. If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee
for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to
the Securities of one or more or all of such series and that
at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one
year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect
to the Securities of any series shall be appointed by Act of
the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611,
become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect
to the Securities of any Series shall have been so appointed
by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona
fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the
Securities of such series.
f. The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with
respect to the
Securities of any series by mailing written notice of such
event by first-class mail, postage prepaid, to all Holders of
Securities of such series as their names and addresses appear
in the Security Register. Each notice shall include the name
of the successor Trustee with respect to the Securities of
such series and the address of its Corporate Trust Office.
11. Acceptance of Appointment by Successor.
a. In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of
the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or
the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers
and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
b. In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest
in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not
retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (3)
shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees
cotrustees of the same trust and that each such Trustee shall
be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the
retiring
Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request
of the Company or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates.
c. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraphs (a) and
(b) of this Section, as the case may be.
d. No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be
a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated
with the same effect as if such successor Trustee had itself
authenticated such Securities.
13. Preferential Collection of Claims Against Company.
a. Subject to Subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly,
secured or unsecured, of the Company within four months prior
to a default, as defined in Subsection (c) of this Section, or
subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold
in a special account for the benefit of the Trustee
individually, the Holders of the Securities and the holders of
other indenture securities, as defined in Subsection (c) of
this Section:
1. an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor
in respect of principal or interest, effected after
the beginning of such four months' period and valid as
against the Company and its other creditors, except
any such reduction resulting from the receipt or
disposition of any property described in paragraph (2)
of this Subsection, or from the exercise of any right
of set-off which the Trustee could have exercised if a
petition in bankruptcy had been filed by or against
the Company upon the date of such default; and
2. all property received by the Trustee in respect of any
claims as such creditor, either as security therefor,
or in satisfaction or composition thereof, or
otherwise, after the beginning of such four months'
period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the
rights, if any, of the Company and its other creditors
in such property or such proceeds.
Nothing herein contained, however, shall affect the
right of the Trustee:
A. to retain for its own account (i) payments
made on account of any such claim by any
Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona
fide sale of any such claim by the Trustee to
a third Person, and (iii) distributions made
in cash, securities or other property in
respect of claims filed against the Company in
bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law;
B. to realize, for its own account, upon any
property held by it as security for any such
claim, if such property was so held prior to
the beginning of such four months' period;
C. to realize, for its own account, but only to
the extent of the claim hereinafter mentioned,
upon any property held by it as security for
any such claim, if such claim was created
after the beginning of such four months'
period and such property was received as
security therefor simultaneously with the
creation thereof, and if the Trustee shall
sustain the burden of proving that at the time
such property was so received the Trustee had
no reasonable cause to believe that a default,
as defined in Subsection (c) of this Section,
would occur within four months; or
D. to receive payment on any claim referred to in
paragraph (B) or (C), against the release of
any property held as security for such claim
as provided in paragraph (B) or (C), as the
case may be, to the extent of the fair value
of such property.
For the purposes of paragraphs (B), (C) and
(D), property substituted after the beginning
of such four months' period for property held
as security at the time of such substitution
shall, to the extent of the fair value of the
property released, have the same status as the
property released, and, to the extent that any
claim referred to in any of such paragraphs is
created in renewal of or in substitution for
or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such
creditor, such claim shall have the same
status as such pre-existing claim.
If the Trustee shall be required to account,
the funds and property held in such special
account and the proceeds thereof shall be
apportioned among the Trustee, the Holders and
the holders of other indenture securities in
such manner that the Trustee, the Holders and
the holders of other indenture securities
realize, as a result of payments from such
special account and payments of dividends on
claims filed against the Company in bankruptcy
or receivership or in proceedings for
reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the
same percentage of their respective claims,
figured before crediting to the claim of the
Trustee anything on account of the receipt by
it from the Company of the funds and property
in such special account and before crediting
to the respective claims of the Trustee and
the Holders and the holders of other indenture
securities dividends on claims filed against
the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to
the Federal Bankruptcy Act or applicable State
law, but after crediting thereon receipts on
account of the indebtedness represented by
their respective claims from all sources other
than from such dividends and from the funds
and property so held in such special account.
As used in this paragraph, with respect to
any claim, the term "dividends" shall include
any distribution with respect to such claim,
in bankruptcy or receivership or proceedings
for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law,
whether such distribution is made in cash,
securities or other property, but shall not
include any such distribution with respect to
the secured portion, if any, of such claim.
The court in which such bankruptcy,
receivership or proceedings for reorganization
is pending shall have jurisdiction (i) to
apportion among the Trustee, the Holders and
the holders of other indenture securities, in
accordance with the provisions of this
paragraph, the funds and property held in such
special account and proceeds thereof, or (ii)
in lieu of such apportionment, in whole or in
part, to give to the provisions of this
paragraph due consideration in determining the
fairness of the distributions to be made to
the Trustee and the Holders and the holders of
other indenture securities with respect to
their respective claims, in which event it
shall not be necessary to liquidate or to
appraise the value of any securities or other
property held in such special account or as
security for any such claim, or to make a
specific allocation of such distributions as
between the secured and unsecured portions of
such claims, or otherwise to apply the
provisions of this paragraph as a mathematical
formula.
Any Trustee which has resigned or been removed
after the beginning of such four months'
period shall be subject to the provisions of
this Subsection as though such resignation or
removal had not occurred. If any Trustee has
resigned or been removed prior to the
beginning of such four months' period, it
shall be subject to the provisions of this
Subsection if and only if the following
conditions exist:
i. the receipt of property or reduction
of claim, which would have given rise
to the obligation to account, if such
Trustee had continued as Trustee,
occurred after the beginning of such
four months' period; and
ii. such receipt of property or reduction
of claim occurred within four months
after such resignation or removal.
b. There shall be excluded from the operation of Subsection (a)
of this Section a creditor relationship arising from:
1. the ownership or acquisition of securities issued
under any indenture, or any security or securities
having a maturity of one year or more at the time of
acquisition by the Trustee;
2. advances authorized by a receivership or bankruptcy
court of competent jurisdiction or by this Indenture,
for the purpose of preserving any property which shall
at any time be subject to the lien of this Indenture
or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and
of the circumstances surrounding the making thereof is
given to the Holders at the time and in the manner
provided in this Indenture;
3. disbursements made in the ordinary course of business
in the capacity of trustee under the indenture,
transfer agent, registrar, custodian, paying agent,
fiscal agent or depositary, or other similar capacity;
4. an indebtedness created as a result of services
rendered or premises rented; or an indebtedness
created as a result of goods or securities sold in a
cash transaction, as defined in Subsection (c) of this
Section;
5. the ownership of stock or of other securities of a
corporation organized under the provisions of Section
25(a) of the Federal Reserve Act, as amended, which is
directly or indirectly a creditor of the Company; and
6. the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of
self-liquidating paper, as defined in Subsection (c)
of this Section.
c. For the purposes of this Section only:
1. the term "default" means any failure to make payment
in full of the principal of or interest on any of the
Securities or upon the other indenture securities when
and as such principal or interest becomes due and
payable;
2. the term "other indenture securities" means securities
upon which the Company is an obligor outstanding under
any other indenture (i) under which the Trustee is
also trustee, (ii) which contains provisions
substantially similar to the provisions of this
Section, and (iii) under which a default exists at the
time of the apportionment of the funds and property
held in such special account;
3. the term "cash transaction" means any transaction in
which full payment for goods or securities sold is
made within
seven days after delivery of the goods or securities
in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand;
4. the term "self-liquidating paper" means any draft,
bull of exchange, acceptance or obligations which is
made, drawn, negotiated or incurred by the Company for
the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods,
wares or merchandise and which is secured by documents
evidencing title to, possession of, or lien upon, the
goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security,
provided the security is received by the Trustee
simultaneously with the creation of the creditor
relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation;
5. the term "Company" means any obligor upon the
Securities; and
6. the term "Federal Bankruptcy Act" means the Bankruptcy
Act or Title 11 of the United States Code.
14. Appointment of Authenticating Agent.
As of the date of the Indenture and at any time when any of the Securities
remain Outstanding the Trustee may appoint an Authenticating Agent or Agents
(which may be an Affiliate or Affiliates of the Company) with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon original issuance,
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital surplus as set
forth in its most recent report of condition so published. If at
any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation, to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof
to the Trustee and to the Company. The Trustee may at any time terminate the
agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice or
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time reasonable
compensation for its services under this Section.
The Bank is initially designated as the Authenticating Agent for the Securities.
If an appointment with respect to one or more series is made pursuant to this
Section, the Securities of such series may have endorsed thereon, in addition to
the Trustee's certificate of authentication, an alternate certificate of
authentication in the following form:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
As Trustee
By___________________________________
As Authenticating Agent
By___________________________________
Authorized Officer
2.
Holders' Lists and Reports by Trustee and Company
1. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
a. semi-annually, not more than fifteen
days after each Regular Record Date,
or, in the case of any series of
Securities on which no interest is
payable, not more than fifteen days
after each coupon date or other date
specified by the Trustee, a list, in
such form as the Trustee may
reasonably require, of the names and
addresses of the Holders as of such
Record Date, and
b. at such other times as the Trustee may
request in writing, within 30 days
after the receipt by the Company of
any such request, a list of similar
form and content as of a date not more
than 15 days prior to the time such
list is furnished;
excluding from any such list names and addresses received by the
Trustee if and so long as it is acting as Security Registrar.
2. Preservation of Information; Communications to Holders.
a. The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 701 and the names and addressees of
Holders received by the Trustee if and so long as it is acting
as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished.
b. If three or more Holders of the same series (herein referred
to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such
applicant has owned a Security for a period of at least six
months preceding the date of such application, and such
application states that the applicants desire to communicate
with other Holders with respect to their rights under this
Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within
five business days after the receipt of such application, at
its election, either
i. afford such applicants access to the
information preserved at the time by
the Trustee in accordance with Section
702(a), or
ii. inform such applicants as to the
approximate number of Holders whose
names and addresses appear in the
information preserved at the time by
the Trustee in accordance with Section
702(a), and as to the approximate cost
of mailing to such Holders the form of
proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information. the Trustee shall, upon the
written request of such applicants, mail to each Holder whose
name and address appear in the information preserved at the
time by the Trustee in accordance with Section 702(a) a copy
of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to
the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender the Trustee
shall mail to such applicants and file with the Commission,
together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee,
such mailing would be contrary to the best interest of the
Holders or would be in violation of applicable law. Such
written statement
shall specify the basis of such opinion. If the Commission,
after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections,
the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met
and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of
such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their
application.
c. Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall
be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in
accordance with Section 702(b), regardless of the source from
which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material
pursuant to a request made under Section 702(b).
3. Reports by Trustee.
a. On or before September 15 of each year commencing with the
year 1990, the Trustee shall transmit by mail to all Holders,
as their names and addresses appear in the Security Register,
a brief report dated as of the preceding July 15 with respect
to:
1. its eligibility under Section 609 and its
qualifications under Section 608, or in lieu thereof,
if to the best of its knowledge it has continued to be
eligible and qualified under said Sections, a written
statement to such effect;
2. the character and amount of any advances (and if the
Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee
(as such) which remain unpaid on the date of such
report, and for the reimbursement of which it claims
or may claim a lien or charge, prior to that of the
Securities, on any property or funds held or collected
by it as Trustee, except that the Trustee shall not be
required (but may elect) to report such advances if
such advances so remain unpaid aggregate not more than
1/2 of 1% of the principal amount of the Securities
Outstanding on the date of such report;
3. the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any
other obligor on the Securities) to the Trustee in its
individual capacity, on the date of such report, with
a brief description
of any property held as collateral security therefor,
except an indebtedness based upon a creditor
relationship arising in any manner described in
Section 613(b)(2), (3), (4) or (6);
4. the property and funds, if any, physically in the
possession of the Trustee as such on the date of such
report;
5. any additional issue of Securities which the Trustee
has not previously reported; and
6. any action taken by the Trustee in the performance of
its duties hereunder which it has not previously
reported and which in its opinion materially affects
the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the
Trustee in accordance with Section 602.
b. The Trustee shall transmit by mail to all Holders, as their
names and addresses appear in the Security Register, a brief
report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report
transmitted pursuant to Subsection (a) of this Section (or if
no such report has yet been so transmitted, since the date of
execution of this instrument) for the reimbursement of which
it claims or may claim a lien or charge, prior to that of the
Securities, on property or funds held or collected by it as
Trustee and which it has not previously reported pursuant to
this Subsection, except that the Trustee shall not be required
(but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the
principal amount of the Securities Outstanding at such time,
such report to be transmitted within 90 days after such time.
c. A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each
stock exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
4. Reports by Company.
The Company shall:
1. file with the Trustee, within 15 days after the
Company is required to file the same with the
Commission, copies of the annual reports and of the
information, documents and other reports (or copies of
such portions of any of the foregoing as the
Commission may from time to time by rules and
regulations prescribe) which the Company may be
required to file with the Commission pursuant to
Section
13 or Section 15(d) of the Securities Exchange Act of
1934; or, if the Company is not required to file
information, documents or reports pursuant to either
of said Sections, then it shall file with the Trustee
and the Commission, in accordance with rules and
regulations prescribed from time to time by the
Commission, such of the supplementary and periodic
information, documents and reports which may be
required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed
and registered on a national securities exchange as
may be prescribed from time to time in such rules and
regulations;
2. file with the Trustees and the Commission, in
accordance with rules and regulations prescribed from
time to time by the Commission, such additional
information, documents and reports with respect to
compliance by the Company with the conditions and
covenants of this Indenture as may be required from
time to time by such rules and regulations; and
3. transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30
days after the filing thereof with the Trustee, such
summaries of any information, documents and reports
required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be
required by rules and regulations prescribed from time
to time by the Commission.
3.
Consolidation, Merger, Conveyance, Transfer or Lease
1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
1. the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by
conveyance or transfer, of which leases, the
properties and assets of the Company substantially as
an entirety shall be a corporation organized and
existing under the laws of the United States of
America, any State thereof or the District of Columbia
and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium,
if any) and interest on all the Securities and the
performance of every
covenant of this Indenture on the part of the Company
to be performed or observed;
2. immediately after giving effect to such transaction,
no Event of Default and no event which, after notice
or lapse of time or both, would become an Event of
Default shall have happened and be continuing; and
3. the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance,
transfer or lease and such supplemental indenture
comply with this Article and that all conditions
precedent herein provided for relating to such
transaction have been complied with.
2. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company into any
other Person or any conveyance, transfer or lease of the properties and assets
of the Company substantially as an entirety in accordance with Section 801, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
4.
Supplemental Indentures
1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the
following purposes:
1. to evidence the succession of another corporation to
the Company and the assumption by any such successor
of the covenants of the Company herein and in the
Securities; or
2. to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities (and
if such covenants are to be for the benefit of fewer
than all series of Securities, stating that such
covenants are expressly being included solely for the
benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
3. to add any additional Events of Default; or
4. to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to
permit or facilitate the issuance of Securities in
bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to
permit or facilitate the issuance of Securities in
certificated form or global form; or
5. to change or eliminate any of the provisions of this
Indenture, provided that any such change or
elimination shall become effective only when there is
no Security Outstanding of any series created prior to
the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
6. to secure the Securities; or
7. to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
8. to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with
respect to the Securities of one or more series and to
add to or change any of the provisions of this
Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder
by more than one Trustee, pursuant to the requirements
of Section 611(b); or
9. to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any
other provision herein, or to make any other
provisions with respect to matters or questions
arising under this Indenture, provided such action
shall not adversely affect the interests of the
Holders of Securities or any series in any material
respect.
2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected
by such supplemental indenture, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
1. change the Stated Maturity of the principal of, or any
instalment of principal of or interest on, any
Security, or
reduce the principal amount thereof or the rate of, or
method of computation of the rate of, interest thereon
or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable
upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or reduce the amount
of, or postpone the date fixed for, the payment of any
sinking fund or analogous obligation, or change any
Place of Payment where, or the coin or currency in
which, any Security or any premium of the interest
thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
2. reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of
whose Holders is required for any such supplemental
indenture, of the consent of whose Holders is required
for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or
3. modify any of the provisions of this Section, Section
513 or Section 1008, except to increase any such
percentage or to provide that certain other provisions
of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security
affected thereby, provided, however, that this clause
shall not be deemed to require the consent of any
Holder with respect to changes in the references to
the "Trustee", and concomitant changes in this Section
and Section 1008, or the deletion of this proviso, in
accordance with the requirements of Sections 611(b)
and 901(8).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities,
or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders
on such record date or their duly designated proxies, and only such
Persons, shall be entitled to consent to such supplemental indenture,
whether or not such Holders remain Holders after such record date;
provided, that unless such
consent shall have become effective by virtue of the requisite
percentage having been obtained prior to the date which is 90 days
after such record date, any such consent previously given shall
automatically and without further action by any Holder be canceled and
of no further effect.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance
thereof.
3. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee may
receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture.
The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in
effect.
6. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
5.
Covenants
1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of
(and premium, if any) and interest on the Securities of that
series in accordance with the terms of the Securities and this
Indenture.
The Company shall have the right to require a Holder, in
connection with the payment of the principal of (and premium, if
any) or interest, if any, on a Security, to present at the office
or agency of the Company at which such payment is made a
certificate, in such form as the Company may from time to time
prescribe, to enable the Company to determine its duties and
liabilities with respect to any taxes, assessments or governmental
charges which it may be required to deduct or withhold therefrom
under any present or future law of the United States of America or
of any State, County, Municipality or taxing authority therein,
and the Company shall be entitled to determine its duties and
liabilities with respect to such deduction or withholding on the
basis of information contained in such certificate or, if no such
certificate shall be so presented, on the basis of any presumption
created by any such law, and shall be entitled to act in
accordance with such determination.
2. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of
New York and in each Place of Payment for any series of Securities
an office or agency where Securities of that series may be
presented or surrendered for payment (provided, however, that,
unless otherwise provided with respect to any series of
Securities, at the option of the Company payment of interest may
be made by check mailed to the address of the person entitled
thereto as such address shall appear in the Security Register),
where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands
to or upon the Company in respect of the Securities of that series
and this Indenture may be served. The Company initially appoints
the corporate trust office of the Bank as its agent for purposes
of presentation and surrender of Securities for payment,
registration of transfer or exchange and for service of notices
and demands to or upon the Company in respect of the Securities of
a series and this Indenture. The Company will give prompt written
notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from
time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York and in each Place of Payment for
Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office
or agency.
3. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due
date of the principal of (and premium, if any) or interest on any of
the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal
of (and premium, if any) or interest on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so
to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent
will:
1. hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on
Securities of that series in trust for the benefit of
the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as
herein provided;
2. give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that
series) in the making of any payment of principal of
(and premium, if any) or interest on the Securities of
that series; and
3. at any time during the continuance of any such
default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust
by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security of any series and
remaining unclaimed for two years after such principal (and premium,
if any) or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation
in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will
be repaid to the Company.
4. Corporate Existence.
Except as permitted by the provisions of Article Eight and subject to
Section 1006, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate
existence and that of the Bank and material rights (charter and
statutory) and material franchises of the Company and the Bank;
provided, however, that the Company shall not be required to preserve
any such right or franchise if the Board of Directors shall determine
that the preservation
thereof is no longer desirable in the conduct of the business of the
Company and its Subsidiaries considered as a whole, and that the loss
thereof is not disadvantageous in any material respect to the Holders.
5. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company and the
Bank or upon the income, profits or property of the Company and the
Bank, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of the
Company and the Bank; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate proceedings.
6. Limitation on Disposition of Stock of Bank.
So long as any Securities shall be Outstanding, neither the Company
nor any Intermediate Subsidiary (as hereinafter defined) will (except
to the Company or an Intermediate Subsidiary) sell, assign, transfer,
grant a security interest in or otherwise dispose of any shares of,
securities convertible into, or options, warrants or rights to
subscribe for or purchase shares of, Voting Stock of the Bank, nor
will the Company or any Intermediate Subsidiary permit the Bank to
issue any shares of, or securities convertible into, or options,
warrants or rights to subscribe for or purchase shares of, Voting
Stock of the Bank, nor will the Company permit any Intermediate
Subsidiary that owns any shares of, or securities convertible into, or
options, warrants or rights to subscribe for or purchase shares of,
Voting Stock of the Bank to cease to be an Intermediate Subsidiary,
except that (i) the Company or an Intermediate Subsidiary may make any
such sale, assignment, transfer, or grant of a security interest or
other disposition for fair market value on the date thereof, as
determined by the Board of Directors of the Company or such
Intermediate Subsidiary, as the case may be (which determination shall
be conclusive), and evidenced by a duly adopted resolution thereof,
and (ii) in each such case, after giving effect thereto, the Company
and any one or more Intermediate Subsidiaries will own at least 80% of
the Voting Stock of the Bank then issued and outstanding free and
clear of any security interest. Notwithstanding the foregoing, the
Bank may be merged into or consolidated with another banking
institution organized under the laws of the United States, any State
thereof or the District of Columbia, if after giving effect to such
merger or consolidation the Company and any one or more Intermediate
Subsidiaries own at least 80% of the Voting Stock of such other
banking institution and immediately after giving effect thereto
and treating any such resulting bank thereafter as the Bank for
purposes of this Indenture, no Event of Default, and no event which,
after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing. For purposes of this
Section, an "Intermediate Subsidiary" means a Subsidiary (i) that is
organized under the laws of the United States, any State thereof or
the District of Columbia, and (ii) of which all the shares of each
class of capital stock issued and outstanding, and all securities
convertible into, and options, warrants and rights to subscribe for or
purchase shares of, such capital stock, are owned directly by the
Company, free and clear of any security interest.
The provisions of this Section 1006 shall not prohibit the Company
from consolidating with or merging into any other Person or from
conveying, transferring or leasing the Company's properties and assets
substantially as an entirety to any Person as otherwise permitted
pursuant to Article Eight.
7. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company, a written statement, which need
not comply with Section 102, signed by the Chairman of the Board, a
Vice Chairman, the President, the Chief Financial Officer or a Vice
President and by the Controller, Assistant Controller, the Secretary
or an Assistant Secretary of the Company stating, as to each signer
thereof, that
1. a review of the activities of the Company during such
year and of performance under this Indenture has been
made under his supervision, and
2. to the best of his knowledge, based on such review,
(a) the Company has fulfilled all its obligations
under this Indenture throughout such year, or, if
there has been a default in the fulfillment of any
such obligation, specifying each such default known to
him and the nature and status thereof, and (b) no
event has occurred and is continuing which is, or
after notice or lapse of time or both would become, an
Event of Default, or, if such an event has occurred
and is continuing, specifying each such event known to
him and the nature and status thereof.
8. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, covenant or condition set forth in Sections 1004 to 1006,
inclusive, with respect to the Securities of any series if before the
time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of such series shall,
by Act of such Holders, either waive such compliance in such instance
or
generally waive compliance with such term, covenant or condition, but no
such waiver shall extend to or affect such term, covenant or condition
except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the
Trustee in respect of any such term, covenant or condition shall remain in
full force and effect.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to waive any such term,
provision or condition. If a record date is fixed, the Holders on such
record date or their duly designated proxies, and only such Persons, shall
be entitled to waive any such term, provision or condition hereunder,
whether or not such Holders remain Holders after such record date;
provided, that unless the Holders of at least a majority in principal
amount of the Outstanding Securities of such series shall have waived such
term, provision or condition prior to the date which is 90 days after such
record date, any such waiver previously given shall automatically and
without further action by any Holder be canceled and of no further effect.
6.
Redemption of Securities
1. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the
election of the Company of fewer than all the Securities of any
series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the tenor, if applicable, of the Securities to
be redeemed, and of the principal amount of Securities of such
series to be redeemed. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction.
3. Selection by Trustee of Securities to Be Redeemed.
If fewer than all the Securities of any series are to be redeemed
(unless all of the Securities of a specified tenor are to e
redeemed), the particular
Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series subject to such redemption and not
previously called for redemption, by such method as the Trustee shall
deem fair and appropriate (but subject to compliance with the rules of
any securities exchange on which the securities of such series may be
listed) and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities
of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of that series. If
fewer than all of the Securities of such series and of a specified
tenor are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 45 days prior to the Redemption Date
by the Trustee, from the Outstanding Securities of such series and
specified tenor not previously called for redemption in accordance
with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed
only in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
All notices of redemption shall state:
1. the Redemption Date,
2. the Redemption Price,
3. if fewer than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in
the case of partial redemption, the principal amounts)
of the particular Securities to be redeemed,
4. the CUSIP number of the Securities to be redeemed,
5. that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon
will cease to accrue on and after said date,
6. the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
7. that the redemption is for a sinking fund, if such is
the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
5. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on
that date.
6. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease to
bear interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of
Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
7. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder thereof or his
attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. If a
Global Security is so surrendered, such new Security so issued shall be a new
Global Security.
7.
Sinking Funds
1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such
series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such
minimum amount provided for by the terms of Securities of any series
is herein referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series, the cash amount
of any sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
2. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a
credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided
that such Securities have not been previously so credited; provided
further that, in the case of (1) above, with respect to any
Outstanding Securities so delivered, and in the case of (2) above,
with respect to any such Securities so credited, such Outstanding
Securities or Securities, as the case may be, be Securities subject to
the sinking fund payment required to be made with respect to the
Securities of such series. Such Securities shall be received and
credited for such purpose by the Trustee at the Redemption Price
specified in such
Securities for redemption through operation of the sinking fund and
the amount of such sinking fund payment shall be reduced accordingly.
3. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any series
of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 1202 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 45 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1106 and 1107.
8.
Defeasance and Covenant Defeasance
1. Applicability of Article; Company's Option to Effect Defeasance or
Covenant Defeasance.
If pursuant to Section 301 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 1302 or (b)
covenant defeasance of the Securities of a series under Section 1303,
then the provisions of such Section or Sections, as the case may be,
together with the other provisions of this Article Thirteen, shall be
applicable to the Securities of such series, and the Company may at
its option by Board Resolution, at any time, with respect to the
Securities of such series, elect to have either Section 1302 (if
applicable) or Section 1303 (if applicable) be applied to the
Outstanding Securities of such series upon compliance with the
conditions set forth below in this Article Thirteen.
2. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series
on and after the date the conditions precedent set forth below are
satisfied but subject to satisfaction of the conditions subsequent set
forth below (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and
discharged the entire
indebtedness represented by the Outstanding Securities of such series
and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged hereunder: (A)
the rights of Holders of the series of Securities defeased pursuant to
this Section 1302 to receive, solely from the trust fund described in
Section 1304 and as more fully set forth in such Section, payments of
the principal of (and premium, if any) and interest on such Securities
when such payments are due, (B) the Company's obligations with respect
to such Securities under Sections 304, 305, 306, 1002 and 1003 and
such obligations as shall be ancillary thereto, (C) the rights,
powers, trusts, duties, immunities and other provisions in respect of
the Trustee hereunder and (D) this Article Thirteen. Subject to
compliance with this Article Thirteen, the Company may exercise its
option under this Section 1302 notwithstanding the prior exercise of
its option under Section 1303 with respect to the Securities of such
series. Following a defeasance, payment of the Securities of such
series may not be accelerated because of an Event of Default.
3. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be released from its obligations under
Section 1005 and Section 1006, (and any other Sections applicable to
such Securities that are determined pursuant to Section 301 to be
subject to this provision) and the occurrence of an event of default
specified in Section 501(4) (insofar as it is with respect to Section
1005 and Section 1006 or any other Section applicable to such
Securities that are determined pursuant to Section 301 to be subject
to this provision) or Section 501(5) shall be deemed not to be an
Event of Default with respect to the Outstanding Securities of such
series on and after the date the conditions precedent set forth below
are satisfied but subject to satisfaction of the conditions subsequent
set forth below (hereinafter, "covenant defeasance"). For this
purpose, such covenant defeasance means that, with respect to the
Outstanding Securities of such series, the Company may omit to comply
with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section, whether directly or
indirectly by reason of any reference elsewhere herein to any such
Section or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby. Following a
covenant defeasance, payment of the Securities of such series may not
be accelerated because of an Event of Default specified in Section
501(5) or by reference to such other Section specified above in this
Section 1303.
4. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent or, as specifically
noted below, subsequent to application of either Section 1302 or
Section 1303 to the Outstanding Securities of such series:
1. The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 609 who shall
agree to comply with the provisions of this Article
Thirteen applicable to it) as trust funds in trust for
the purpose of making the following payments,
specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such
Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled
payment of principal and interest in respect thereof
in accordance with their terms will provide, not later
than one day before the due date of any payment, money
in an amount, or (C) a combination thereof,
sufficient, without reinvestment, in the opinion of a
nationally recognized firm of independent public
accountants expressed in a written certification
thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge,
(i) the principal of (and premium, if any) and
interest on the Outstanding Securities of such series
to maturity or redemption, as the case may be, and
(ii) any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Securities of
such series on the due dates thereof. Before such a
deposit the Company may make arrangements satisfactory
to the Trustee for the redemption of Securities at a
future date or dates in accordance with Article
Eleven, which shall be given effect in applying the
foregoing. For this purpose, "U.S. Government
Obligations" means securities that are (x) direct
obligations of the United States of America for the
payment of which its full faith and credit is pledged
or (y) obligations of a Person controlled or
supervised by and acting as an agency or
instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States
of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with respect to
any such U.S. Government
Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held
by such custodian for the account of the holder of
such depository receipt, provided that (except as
required by law) such custodian is not authorized to
make any deduction from the amount payable to the
holder of such depository receipt from any amount
received by the custodian in respect of the U.S.
Government Obligation or the specific payment of
principal of or interest on the U.S. Government
Obligation evidenced by such depository receipt.
2. 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 of such series shall
have occurred and be continuing (A) on the date of
such deposit or (B) insofar as subsections 501(6) and
(7) are concerned, at any time during the period
ending on the 123rd day after the date of such deposit
or, if longer, ending on the day following the
expiration of the longest preference period applicable
to the Company in respect of such deposit (it being
understood that the condition in this clause (B) is a
condition subsequent and shall not be deemed satisfied
until the expiration of such period).
3. Such defeasance or covenant defeasance shall not (A)
cause the Trustee for the Securities of such series to
have a conflicting interest as defined in Section 608
or for purposes of the Trust Indenture Act with
respect to any securities of the Company or (B) result
in the trust arising from such deposit to constitute,
unless it is qualified as, a regulated investment
company under the Investment Company Act of 1940, as
amended.
4. Such defeasance or 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 Company is a party or by
which it is bound.
5. Such defeasance or covenant defeasance shall not cause
any Securities of such series then listed on any
registered national securities exchange under the
Securities Exchange Act of 1934, as amended, to be
delisted.
6. In the case of an election under Section 1302, the
Company shall have delivered to the Trustee an Opinion
of Counsel stating that (x) the Company has received
from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of
this Indenture there has been a change in the
applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding
Securities of
such series will not recognize income, gain or loss
for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax
on the same amounts, in the same manner and at the
same times as would have been the case if such
defeasance had not occurred.
7. In the case of an election under Section 1303, the
Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of the
Outstanding Securities of such series 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.
8. Such defeasance or covenant defeasance shall be
effected in compliance with any additional terms,
conditions or limitations which may be imposed on the
Company in connection therewith pursuant to Section
301.
9. The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for
relating to either the defeasance under Section 1302
or the covenant defeasance under Section 1303 (as the
case may be) have been complied with.
5. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money and
U.S. Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee collectively, for purposes of this Section
1305, the "Trustee") pursuant to Section 1304 in respect of the Outstanding
Securities of such series shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (but not including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Securities, of all sums due and to become due thereon in respect
of principal (and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the money or U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof.
Anything herein to the contrary notwithstanding, the Trustee shall deliver or
pay to the Company from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 1304 which, in the
opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
defeasance or covenant defeasance.
Anything herein to the contrary notwithstanding, if and to the extent the
deposited money or U.S. Government Obligations (or the proceeds thereof) either
(i) cannot be applied by the Trustee in accordance with this Section because of
a court order or (ii) are for any reason insufficient in amount, then the
Company's obligations to pay principal of (and premium, if any) and interest on
the Securities of such series shall be reinstated to the extent necessary to
cover the deficiency on any due date for payment. In any case specified in
clause (i), the Company's interest in the deposited money and U.S. Government
Obligations (and proceeds thereof) shall be reinstated to the extent the
Company's payment obligations are reinstated.
This instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
In Witness Whereof, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
Chemical Banking Corporation
By
[Corporate Seal]
Attest:
The Chase Manhattan Bank
(National Association)
By
[Corporate Seal]
Attest:
State of New York)
)SS.:
County Of New York )
On the day of , , before me personally came , to me known, who, being by me duly
sworn, did depose and say that he is of Chemical Banking Corporation one of the
corporations described in and which executed the foregoing instruments; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
Notary Public in and for said State
[Notarial Seal]
State Of New York)
)SS.:
County Of New York)
On the day of , , before me personally came , to me known, who, being by me duly
sworn, did depose and say that he is of The Chase Manhattan Bank (National
Association) one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
Notary Public in and for said State
[Notarial Seal]