<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): FEBRUARY 11, 1999
------------------------
UNIONBANCAL CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
CALIFORNIA 0-28118 94-1234979
(State or other jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File Number) Identification No.)
350 CALIFORNIA STREET
SAN FRANCISCO, CALIFORNIA 94104
(Address of principal executive offices) (Zip Code)
</TABLE>
Registrant's telephone number, including area code: (415) 765-2969
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<PAGE>
ITEM 5. OTHER EVENTS
On February 11, 1999, UnionBanCal Corporation (the "Company") and
UnionBanCal Finance Trust I (the "Trust"), a subsidiary of the Company, entered
into an Underwriting Agreement with Morgan Stanley & Co. Incorporated, Salomon
Smith Barney Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
PaineWebber Incorporated and Prudential Securities Incorporated, as managers of
the several Underwriters named therein (the "Underwriters"), pursuant to which
the Underwriters purchased 14,000,000 of the Trust's 7 3/8% Capital Securities
(the "Capital Securities") at a purchase price of $25 per Capital Security,
resulting in aggregate proceeds to the Trust of $350,000,000. In connection
therewith, the Company purchased 432,990 of the Trust's 7 3/8% Common Securities
(the "Common Securities") at a purchase price of $25 per Common Security,
resulting in aggregate proceeds to the Trust of $10,824,750. The Company is
guaranteeing the Capital Securities (the "Guarantee") based on its obligations
under a Guarantee Agreement, an Amended and Restated Declaration of Trust of the
Trust and an Indenture. The Trust used the proceeds of the sale of the Capital
Securities and the Common Securities to purchase $360,824,750 aggregate
principal amount of the Company's 7 3/8% Junior Subordinated Deferrable Interest
Debentures due 2029 (the "Junior Subordinated Debentures"). The Capital
Securities, the Guarantee and the Junior Subordinated Debentures were previously
registered by the Company and the Trust under the Securities Act of 1933, as
amended, pursuant to Registration Statements on Form S-3 (File Nos. 333-67581
through -67581-04). The Registration Statements were declared effective on
February 10, 1999. The Company and the Trust hereby file the exhibits set forth
below in connection with the above referenced transactions.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------ --------------------------------------------------------------------------
<C> <S>
1.1 Underwriting Agreement, dated February 11, 1999, by and among UnionBanCal
Corporation, UnionBanCal Finance Trust I, and Morgan Stanley & Co.
Incorporated, Salomon Smith Barney Inc., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, PaineWebber Incorporated and Prudential Securities
Incorporated, as managers of the several Underwriters named therein.
4.1 Indenture, dated as of February 19, 1999, between UnionBanCal Corporation
and The First National Bank of Chicago, as indenture trustee.
4.2 Officer's Certificate, dated as of February 19, 1999, and issued pursuant
to the Indenture.
4.3 Guarantee Agreement with respect to Capital Securities issued by
UnionBanCal Finance Trust I, dated as of February 19, 1999, between
UnionBanCal Corporation and The First National Bank of Chicago, as
guarantee trustee.
4.4 Amended and Restated Declaration of Trust of UnionBanCal Finance Trust I,
dated as of February 19, 1999, among UnionBanCal Corporation, as
Sponsor, the Trustees defined therein and the holders, from time to
time, or undivided beneficial interests in UnionBanCal Finance Trust I.
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
</TABLE>
2
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: February 19, 1999
<TABLE>
<S> <C> <C>
UNIONBANCAL CORPORATION
By: /s/ YOSHIHIKO SOMEYA
-----------------------------------------
Yoshihiko Someya
DEPUTY CHAIRMAN OF THE BOARD
</TABLE>
3
<PAGE>
EXHIBIT 1.1
EXECUTION COPY
UNDERWRITING AGREEMENT
(CAPITAL SECURITIES)
February 11, 1999
UnionBanCal Corporation
350 California Street
San Francisco, California 94104
Ladies and Gentlemen:
We (the "MANAGERS") are acting on behalf of the underwriters (including
ourselves) named below (such underwriters being herein called the
"UNDERWRITERS"), and we understand that UnionBanCal Finance Trust I ("FINANCE
TRUST I"), a statutory business trust created under the Delaware Business
Trust Act, proposes to issue and sell 14,000,000 UnionBanCal Finance Trust I
73/8% Capital Securities (the "OFFERED CAPITAL SECURITIES").
It is understood that substantially contemporaneously with the closing
of the sale of the Offered Capital Securities to the Underwriters
contemplated hereby, (i) Finance Trust I, its trustees (the "FINANCE
TRUSTEES") and UnionBanCal Corporation ("UNBC") shall enter into an Amended
and Restated Declaration of Trust in substantially the form of the Form of
the Amended and Restated Declaration of Trust attached as Exhibit 4.10 to the
Registration Statement referred to below (the "DECLARATION OF TRUST"),
pursuant to which Finance Trust I shall (x) issue and sell the Offered
Capital Securities to the Underwriters pursuant hereto and (y) issue 432,990
shares of its Common Securities (the "COMMON SECURITIES" and, together with
the Offered Capital Securities, the "TRUST SECURITIES") to UNBC, in each case
with such rights and obligations as shall be set forth in such Declaration of
Trust, (ii) UNBC and The First National Bank of Chicago, as Trustee, acting
pursuant to an Indenture dated as of February 19, 1999 shall provide for the
issuance of $360,824,750 principal amount of UNBC's 7-3/8% Junior Subordinated
Deferrable Interest Debentures due 2029 (the "JUNIOR SUBORDINATED
DEBENTURES"), (iii) UNBC shall sell such Junior Subordinated Debentures to
Finance Trust I and Finance Trust I shall purchase such Junior Subordinated
Debentures with proceeds of the sale of the Offered Capital Securities to the
Underwriters contemplated hereby and of the Common Securities to UNBC and
(iv) UNBC and The First National Bank of Chicago, as Guarantee Trustee, shall
enter into a Preferred Securities Guarantee Agreement in substantially the
form of the Form of the Preferred Securities Guarantee Agreement attached as
Exhibit 4.16 to the Registration Statement referred to below (the
"GUARANTEE") for the benefit of holders from time to time of the Offered
Capital Securities.
<PAGE>
Subject to the terms and conditions set forth or incorporated by
reference herein, Finance Trust I hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the aggregate number of Offered
Capital Securities set forth below opposite their names at a purchase price
of $25 per Offered Capital Security (the "PURCHASE PRICE"); PROVIDED, that
UNBC shall pay to the Underwriters' compensation equal to $0.7875 per Offered
Capital Security (except for sales of 10,000 or more Offered Capital
Securities to a single purchaser for which the Underwriters' compensation
will be $0.50 per Offered Capital Security):
<TABLE>
<CAPTION>
Number of
Offered Capital Securities
Underwriter To Be Purchased
----------- ---------------
<S> <C>
Morgan Stanley & Co. Incorporated 2,143,400
Salomon Smith Barney Inc. 2,143,400
Merrill Lynch, Pierce, Fenner & Smith Incorporated 2,143,400
PaineWebber Incorporated 2,143,400
Prudential Securities Incorporated 2,143,400
ABN AMRO Incorporated 98,000
BT Alex. Brown Incorporated 98,000
CIBC Oppenheimer Corp. 98,000
Credit Suisse First Boston Corporation 98,000
A.G. Edwards & Sons, Inc. 98,000
Fox-Pitt, Kelton Inc. 98,000
Keefe, Bruyette & Woods, Inc. 98,000
Lehman Brothers Inc. 98,000
J.P. Morgan Securities Inc. 98,000
Ryan, Beck & Co. 98,000
Schroder & Co. Inc. 98,000
SG Cowen Securities Corporation 98,000
Van Kasper & Company 98,000
Advest, Inc. 49,000
Robert W. Baird & Co. Incorporated 49,000
George K. Baum & Company 49,000
William Blair & Company, L.L.C. 49,000
J.C. Bradford & Co. 49,000
Craigie Incorporated 49,000
Crowell, Weedon & Co. 49,000
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
Number of
Offered Capital Securities
Underwriter To Be Purchased
----------- ---------------
<S> <C>
D.A. Davidson & Co. Incorporated 49,000
Dain Rauscher Wessels 49,000
Davenport & Company LLC 49,000
Fahnestock & Co. Inc. 49,000
Ferris, Baker Watts, Incorporated 49,000
Fidelity Capital Markets, A Division of 49,000
National Financial Services Corporation
Fifth Third/The Ohio Company 49,000
First Albany Corporation 49,000
First Union Capital Markets Corp. 49,000
Fleet Securities, Inc. 49,000
Gibraltar Securities Co. 49,000
J.J.B. Hilliard, W.L. Lyons, Inc. 49,000
Interstate/Johnson Lane Corporation 49,000
Janney Montgomery Scott Inc. 49,000
Kirkpatrick, Pettis, Smith, Polian Inc. 49,000
Legg Mason Wood Walker, Incorporated 49,000
McDonald Investments Inc., A Keycorp Company 49,000
Mesirow Financial, Inc. 49,000
Morgan Keegan & Company, Inc. 49,000
Olde Discount Corporation 49,000
Pershing, A Division of Donaldson, 49,000
Lufkin & Jenrette
Piper Jaffray Inc. 49,000
Raymond James & Associates, Inc. 49,000
The Robinson-Humphrey Company, LLC 49,000
Roney Capital Markets, A Division of First Chicago 49,000
Charles Schwab & Co., Inc. 49,000
Scott & Stringfellow, Inc. 49,000
Southwest Securities, Inc. 49,000
Sterne, Agee & Leach, Inc. 49,000
Stifel, Nicolaus & Company, Incorporated 49,000
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
Number of
Offered Capital Securities
Underwriter To Be Purchased
----------- ---------------
<S> <C>
Sutro & Co. Incorporated 49,000
TD Securities (USA) Inc. 49,000
Tucker Anthony Incorporated 49,000
Wedbush Morgan Securities 49,000
-----------------
Total . . . . . . . . . . . . . . . . . 14,000,000
=================
</TABLE>
The Underwriters will pay for the Offered Capital Securities upon
delivery thereof at the offices of Davis Polk & Wardwell, 450 Lexington
Avenue, New York, New York 10017 at 10:00 a.m. (New York time) on February
19, 1999, or at such other time, not later than 5:00 p.m. (New York time) on
February 19, 1999, as shall be designated by us. The time and date of such
payment and delivery are hereinafter referred to as the "CLOSING DATE".
The Offered Capital Securities shall have the terms set forth in the
Prospectus dated February 10, 1999 and the Prospectus Supplement dated
February 11, 1999, including the following:
TERMS OF OFFERED CAPITAL SECURITIES
<TABLE>
<S> <C>
Designation of the Capital Securities: UnionBanCal Finance Trust I 7-3/8%
Capital Securities
Issuer of Offered Capital Securities: UnionBanCal Finance Trust I
Aggregate Number of Capital Securities: 14,000,000
Price to Public: $25 per Capital Security
Purchase Price: $25 per Capital Security
Underwriters' Compensation per Capital $0.7875 per Capital Security (except
Security: for sales of 10,000 or more Capital
Securities to a single purchaser for
which the Underwriters' compensation
will be $.50 per Offered Capital
Security)
Selling Concession: $0.50 per Capital Security
Reallowance: $0.40 per Capital Security
</TABLE>
4
<PAGE>
<TABLE>
<S> <C>
Closing Date: February 19, 1999
Form: Book-entry
Other Terms:
Maturity Date: May 15, 2029, subject to acceleration
under certain circumstances to a date
no earlier than May 15, 2014
Liquidation Amount: $25 per Capital Security
Distributions: 7-3/8% per annum
Distribution Payment Dates: February 15, May 15, August 15 and
November 15 of each year, commencing
on May 15, 1999
Redemption: Redeemable prior to maturity at the
option of UNBC (i) on or after
February 19, 2004, in whole at any
time or in part from time to time and
(ii) prior to February 19, 2004 in
whole (but not in part) at any time
within 90 days following the
occurrence and continuation of a Tax
Event, an Investment Company Event or
a Regulatory Capital Event, in each
case, at par
</TABLE>
Capitalized terms used above and not defined herein shall have the
meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the document
entitled Underwriting Agreement Standard Provisions dated February 11, 1999
(the "STANDARD PROVISIONS") relating to the Capital Securities of Finance
Trust I (fully and unconditionally guaranteed by UNBC, based on its
obligations under a guarantee, a trust declaration and an indenture), a copy
of which is attached hereto, are herein incorporated by reference in their
entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein, except that
(i) if any term defined in such document is otherwise defined herein, the
definition set forth herein shall control, (ii) all references in such
document to a type of security that is not an Offered Capital Security or a
related Junior Subordinated Debenture shall not be deemed to be a part of
this Agreement and (iii) all references in such document to a type of
agreement that has not been entered into in connection with the transactions
contemplated hereby shall not be deemed to be a part of this Agreement.
5
<PAGE>
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
SALOMON SMITH BARNEY INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
Acting severally on behalf of themselves and the
several Underwriters named in the third paragraph
hereof.
By: Morgan Stanley & Co. Incorporated
By: /s/ Harold J. Hendershot III
-------------------------------
Name: Harold J. Hendershot III
Title: Vice President
Accepted:
UNIONBANCAL CORPORATION
By: /s/ David A. Anderson
----------------------------
Name: David A. Anderson
Title: Senior Vice President
and Controller
UNIONBANCAL FINANCE TRUST I
By: /s/ John H. McGuckin, Jr.
----------------------------
Name: John H. McGuckin, Jr.
Title: Regular Trustee
6
<PAGE>
UNIONBANCAL FINANCE TRUST I
CAPITAL SECURITIES
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
FEBRUARY 11, 1999
UnionBanCal Corporation, a California corporation ("UNBC"), may,
together with UnionBanCal Finance Trust I, a statutory business trust created
under the Delaware Business Trust Act ("FINANCE TRUST I"), enter into an
underwriting agreement that provides for the sale of designated securities to
the several underwriters named therein. The standard provisions set forth
herein may be incorporated by reference in any such underwriting agreement
(an "UNDERWRITING AGREEMENT"). The Underwriting Agreement, including the
provisions incorporated therein by reference, is herein referred to as this
Agreement. Terms defined in the Underwriting Agreement are used herein as
therein defined.
UNBC proposes to cause Finance Trust I to issue its 7-3/8% Capital
Securities ("CAPITAL SECURITIES") guaranteed by UNBC to the extent described
in the Prospectus (as defined below) with respect to distributions and
amounts payable upon liquidation or redemption pursuant to a Preferred
Securities Guarantee Agreement to be dated as of the date of the Underwriting
Agreement executed and delivered by UNBC and The First National Bank of
Chicago, as trustee (the "GUARANTEE TRUSTEE"), for the benefit of the holders
from time to time of the Capital Securities (the "GUARANTEE").
If Finance Trust I issues Capital Securities, it will use the proceeds
from the sale of the Capital Securities and the sale of Common Securities (as
defined below) to purchase from UNBC an aggregate principal amount of its
7-3/8% Junior Subordinated Deferrable Interest Debentures due 2029 (the
"JUNIOR SUBORDINATED DEBENTURES") equal to the aggregate liquidation amount
of the Capital Securities and Common Securities issued by Finance Trust I
pursuant to a Debenture Purchase Agreement to be dated as of the date of the
Underwriting Agreement (the "DEBENTURE PURCHASE AGREEMENT"). The Junior
Subordinated Debentures will be issued under an Indenture to be dated as of
February 19, 1999 between UNBC and The First National Bank of Chicago, as
trustee (the "INDENTURE TRUSTEE") (as amended and supplemented from time to
time, the "INDENTURE"). With respect to the issuance of Capital Securities
by Finance Trust I, UNBC will also be the holder of one hundred percent of
the common securities representing undivided beneficial interests in the
assets of Finance Trust I (the "COMMON SECURITIES" and, together with the
Capital Securities, the "TRUST SECURITIES"), which shall be issued pursuant
to a Subscription Agreement to be dated as of the date of the Underwriting
Agreement (the "SUBSCRIPTION AGREEMENT").
<PAGE>
Finance Trust I has been created under Delaware law pursuant to the
filing of a Certificate of Trust (the "CERTIFICATE OF TRUST") with the
Secretary of State of the State of Delaware, and will be governed by an
Amended and Restated Declaration of Trust (the "DECLARATION OF TRUST") among
UNBC, as sponsor, The First National Bank of Chicago, as Property Trustee
(the "PROPERTY TRUSTEe"), First Chicago Delaware Inc., as Delaware Trustee
(the "DELAWARE TRUSTEE"), and three individuals who have been selected by
UNBC, as sponsor. UNBC, as sponsor, has appointed the Property Trustee, the
Delaware Trustee and three individuals who are officers of or affiliated with
UNBC to act as administrators with respect to Finance Trust I (the "REGULAR
TRUSTEES" and, together with the Property Trustee and the Delaware Trustee,
the "FINANCE TRUSTEES"). The First National Bank of Chicago, as Property
Trustee, will act as Indenture Trustee for the purposes of the Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT").
UNBC and Finance Trust I have filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement including a prospectus
relating to the Capital Securities and the Guarantee (collectively, the
"SECURITIES") and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "PROSPECTUS SUPPLEMENT") pursuant to Rule 424
under the Securities Act of 1933, as amended (the "SECURITIES ACT"),
specifically relating to the Securities offered pursuant to this Agreement
(the "OFFERED CAPITAL SECURITIES" and the "OFFERED GUARANTEE" and,
collectively, the "OFFERED SECURITIES"). The term Registration Statement
means the registration statement as amended to the date of this Agreement.
The term Basic Prospectus means the prospectus included in the Registration
Statement. The term Prospectus means the Basic Prospectus together with the
Prospectus Supplement. The term preliminary prospectus means a preliminary
prospectus supplement specifically relating to the Offered Securities,
together with the Basic Prospectus. As used herein, the terms "BASIC
PROSPECTUS", "PROSPECTUS" and "PRELIMINARY PROSPECTUS" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"SUPPLEMENT", "AMENDMENT" and "AMEND" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by UNBC with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT").
1. REPRESENTATIONS AND WARRANTIES. Each of Finance Trust I and UNBC,
jointly and severally, represents and warrants to and agrees with each of the
Underwriters as of the date of the Underwriting Agreement:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and
no proceedings for such purpose are pending before or, to the knowledge of
UNBC, threatened by the Commission.
2
<PAGE>
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not
contain and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and the
Prospectus comply, and, as amended or supplemented, if applicable, will
comply, when so filed, in all material respects with the Securities Act and
the applicable rules and regulations of the Commission thereunder and (iv)
the Prospectus, as of its date, did not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set
forth in this Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information concerning
any Underwriter furnished to UNBC in writing by such Underwriter through the
Managers expressly for use therein or (B) to those parts of the Registration
Statement that constitute the Statements of Eligibility (Form T-1) under the
Trust Indenture Act of the trustees referred to in the Registration
Statement.
(c) UNBC has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of California, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus; all of the issued shares of capital
stock of each subsidiary of UNBC have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly or
indirectly by UNBC, free and clear of all liens, encumbrances, equities or
claims;
(d) Union Bank of California, N.A. ("UBOC") has been duly organized, is
validly existing as an association in good standing under the laws of the
jurisdiction of its organization, has the power and authority to own its
property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a Material
Adverse Effect.
(e) Finance Trust I has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act, is a
"grantor trust" for United States federal income tax purposes, has the power
and authority to conduct its business as presently conducted and as described
in the Prospectus and is not required to be authorized to do business in any
other jurisdiction.
3
<PAGE>
(f) This Agreement has been duly authorized, executed and delivered
by each of Finance Trust I and UNBC.
(g) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized by UNBC and, upon execution and delivery thereof
by UNBC (and assuming due authorization, execution and delivery by the
Indenture Trustee), will, as of the Closing Date, be a valid and binding
agreement of UNBC, enforceable against UNBC in accordance with its terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is subject
to general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(h) The Junior Subordinated Debentures have been duly authorized and,
when executed and authenticated in accordance with the provisions of the
Indenture, and delivered to and paid for by Finance Trust I in accordance
with the terms of the Debenture Purchase Agreement, will be entitled to the
benefits of the Indenture, and will be valid and legally binding obligations
of UNBC, enforceable against UNBC in accordance with their terms except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law and except as rights to
indemnification and contribution may be limited under applicable law.
(i) The Guarantee has been qualified under the Trust Indenture Act
and has been duly authorized by UNBC and, upon execution and delivery thereof
by UNBC (and assuming due authorization, execution and delivery by the
Guarantee Trustee), will, as of the Closing Date, be a valid and binding
agreement of UNBC, enforceable against UNBC in accordance with its terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is subject
to general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law and except as rights to
indemnification and contribution may be limited under applicable law.
(j) The Declaration of Trust has been qualified under the Trust
Indenture Act and has been duly authorized by UNBC and, upon execution and
delivery thereof by UNBC (and assuming due authorization, execution and
delivery thereof by each party thereto other than UNBC), will, as of the
Closing Date, be a valid and binding agreement of UNBC, enforceable against
UNBC in accordance with its terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights
4
<PAGE>
generally and (ii) is subject to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at law
and except as rights to indemnification and contribution may be limited under
applicable law.
(k) The Offered Capital Securities have been duly authorized by the
Declaration of Trust and, when executed and authenticated in accordance with
the provisions of the Declaration of Trust and delivered to and paid for by
the Underwriters in accordance with the terms of this Agreement, will be
validly issued and (subject to the terms of the Declaration of Trust) fully
paid and non-assessable undivided beneficial interests in the assets of
Finance Trust I, and the issuance of such Offered Capital Securities will not
be subject to any preemptive or similar rights. Holders of the Offered
Capital Securities will be entitled to the same limitation of personal
liability as that extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware. The
Common Securities have been duly authorized by the Declaration of Trust and,
when issued and executed in accordance with the provisions of the Declaration
of Trust and delivered to UNBC against payment therefor as set forth in the
Subscription Agreement, will be validly issued undivided beneficial interests
in the assets of Finance Trust I, and the issuance of such Common Securities
will not be subject to any preemptive rights.
(l) The execution and delivery by UNBC of, and the performance by UNBC
of its obligations under, this Agreement, the Indenture, the Declaration of
Trust, the Guarantee and the Junior Subordinated Debentures, will not
contravene any provision of applicable law, the Declaration of Trust or the
articles of incorporation or bylaws of UNBC or, except for violations that
individually or in the aggregate would not result in a Material Adverse
Effect, any agreement or other instrument binding upon UNBC or any of its
subsidiaries that is material to UNBC and its subsidiaries, taken as a whole,
or any judgment, order or decree of any governmental body, agency or court
having jurisdiction over UNBC or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by UNBC of its obligations under this
Agreement, the Indenture, the Declaration of Trust, the Guarantee and the
Junior Subordinated Debentures, (i) except such as have been obtained or may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Offered Securities or (ii) except
to the extent that the failure to so obtain would not individually or in the
aggregate have a Material Adverse Effect;
(m) The execution and delivery by Finance Trust I of, and the
performance by Finance Trust I of its obligations under, this Agreement will
not contravene any provision of applicable law or the Declaration of Trust
or, except for violations that individually or in the aggregate would not
result in a Material Adverse Effect, any agreement or other instrument
binding upon Finance Trust I that is material to Finance Trust I, or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction
5
<PAGE>
over Finance Trust I, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by Finance Trust I of its obligations under this Agreement, (i)
except such as have been obtained or may be required by the securities or
Blue Sky laws of the various states in connection with the offer and sale of
the Offered Securities or (ii) except to the extent that the failure to so
obtain would not individually or in the aggregate have a Material Adverse
Effect;
(n) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or operations
of Finance Trust I or UNBC and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto effected subsequent to the date of the Underwriting Agreement).
(o) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(p) Each of Finance Trust I and UNBC is not, and after giving effect to
the offering and sale of the Offered Capital Securities and the application
of the proceeds thereof as described in the Prospectus, will not be an
"investment company" as such term is defined under the Investment Company Act
of 1940, as amended.
(q) There are no legal or governmental proceedings pending or, to the
knowledge of UNBC, threatened to which Finance Trust I or UNBC or any of its
subsidiaries is a party or to which any of the properties of Finance Trust I
or UNBC or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described, or any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or the Prospectus
or to be filed or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as required.
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(r) UNBC and its subsidiaries (i) are in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL
LAWS"),(ii) have received all permits, licenses or other approvals required
of them under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions of any
such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a Material
Adverse Effect.
(s) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with Environmental
Laws or any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties) which would,
singly or in the aggregate, have a Material Adverse Effect.
(t) UNBC and each of its subsidiaries possess all material
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their respective
businesses, and neither UNBC nor any such subsidiary has received any notice
of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would result in a
material adverse change in the condition, financial or otherwise, or in the
earnings, business or operations of UNBC and its subsidiaries, taken as a
whole, except as described in or contemplated by the Prospectus.
(u) UNBC has reviewed its operations and that of its subsidiaries to
evaluate the extent to which the business or operations of UNBC or any of its
subsidiaries will be affected by the "Year 2000 Problem" (that is, any
significant risk that UNBC's computer hardware or software applications and
those of its subsidiaries will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as effectively as in the
case of dates or times periods occurring prior to January 1, 2000); as a
result of such review, UNBC has no reason to believe, and does not believe,
that (i) there are any issues related to UNBC's preparedness to address the
Year 2000 Problem that are of a character required to be described or
referred to in the Registration Statement or the Prospectus which have not
been accurately described in the Registration Statement or the Prospectus and
(ii) the Year 2000 Problem will have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business or operations
of UNBC and its subsidiaries, taken as a whole, or result in any material
loss or interference with the business or operations of UNBC and it
subsidiaries, taken as a whole.
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2. PUBLIC OFFERING. Finance Trust I and UNBC are advised by the
Managers that the Underwriters propose to make a public offering of their
respective portions of the Offered Securities as soon after this Agreement
has been entered into as in the Managers' judgment is advisable. The terms
of the public offering of the Offered Securities are set forth in the
Prospectus.
3. PURCHASE AND DELIVERY. Except as otherwise provided in this
Section 3, payment for the Offered Securities shall be made to Finance Trust
I or UNBC, as applicable, in immediately available funds at the time and
place set forth in the Underwriting Agreement, upon delivery to the Managers
for the respective accounts of the several Underwriters of the Offered
Securities registered in such names and in such denominations or amounts, as
the case may be, as the Managers shall request in writing not less than one
full business day prior to the date of delivery, with any transfer taxes
payable in connection with the transfer of the Offered Securities to the
Underwriters duly paid.
4. CONDITIONS TO CLOSING. The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of UNBC's securities by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act; PROVIDED
that this Section 4(a)(i) shall not apply to any downgrading or intended
or potential downgrading by Standard & Poor's Ratings Services, a division
of The McGraw-Hill Companies, Inc. ("STANDARD & POOR'S"), solely as a
result of (A) any changes in the methodology by which Standard & Poor's
accords ratings to capital securities so that such capital securities are
treated more like debt securities or (B) any decrease in the amount of
"equity credit" that Standard & Poor's attributes to capital securities
generally;
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations of UNBC and its subsidiaries,
taken as a whole, or, with respect to an offering of Capital Securities,
Finance Trust I, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto effected subsequent to the execution
and delivery of the Underwriting Agreement), that, in the judgment of the
Managers, is material and adverse and that makes it, in the judgment of
the Managers, impracticable to market the
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Offered Securities on the terms and in the manner contemplated in the
Prospectus; and
(iii) the Managers shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of UNBC, or any other person authorized by the Board of Directors of UNBC
to execute any such written statement (an "EXECUTIVE OFFICER"), and a
certificate, dated the Closing Date and signed by a Regular Trustee of
Finance Trust I,
(A) to the effect set forth in Section 4(a)(i) hereof (in
the case of the certificate signed by an Executive Officer of
UNBC); and
(B) to the effect that the representations and warranties
of UNBC and Finance Trust I contained in this Agreement are true
and correct as of the Closing Date and that each of UNBC and
Finance Trust I, as applicable, has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before the Closing Date.
The Executive Officer or Regular Trustee signing and delivering such
certificate may rely upon the best of his or her knowledge as to
proceedings threatened.
(b) The Managers shall have received on the Closing Date an opinion of
Skadden, Arps, Slate, Meagher & Flom LLP, special counsel to UNBC and Finance
Trust I, dated the Closing Date, to the effect set forth in Exhibit A.
(c) The Underwriters shall have received on the Closing Date an opinion
of John H. McGuckin, Jr., Executive Vice President and General Counsel of
UNBC, dated the Closing Date, to the effect set forth in Exhibit B.
(d) The Managers shall have received on the Closing Date an opinion of
Davis Polk & Wardwell, special counsel for the Underwriters, dated the
Closing Date, with respect to the validity of the Indenture, the Junior
Subordinated Debentures and the Guarantee and such other matters as the
Underwriters may reasonably request.
With respect to Sections 4(b) and 4(c) hereof, Skadden, Arps, Slate,
Meagher & Flom LLP and Davis Polk & Wardwell, respectively, may state that
their opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus (but not including
documents incorporated therein by reference) and review and discussion of the
contents thereof (including documents incorporated therein by reference), but
are without independent check or verification, except as specified.
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With respect to Section 4(b) hereof, Skadden, Arps, Slate, Meagher &
Flom LLP may rely, with respect to factual matters and to the extent such
counsel deems appropriate, upon the representations of UNBC contained herein
and in other documents and instruments.
With respect to Sections 4(b)(xiv) through (xxii) hereof, Skadden, Arps,
Slate, Meagher & Flom LLP may note that holders of Trust Securities may be
obligated, pursuant to the Declaration of Trust, to (i) provide indemnity and
security in connection with and pay taxes or other governmental charges
arising from transfers of certificates for Trust Securities and the issuance
of replacement certificates for Trust Securities, (ii) provide security and
indemnity in connection with requests of or directions to the Property
Trustee to exercise its rights and remedies under the Declaration of Trust
and (iii) undertake as a party litigant to pay costs in any suit for the
enforcement of any right or remedy under the Declaration of Trust or against
the Property Trustee, to the extent provided in the Declaration of Trust.
The opinion of Skadden, Arps, Slate, Meagher & Flom LLP described in
Section 4(b) hereof shall be rendered to the Underwriters at the request of
UNBC and shall so state therein.
(e) The Managers shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the Managers,
from Deloitte & Touche LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in or incorporated by reference
into the Prospectus.
5. COVENANTS OF UNBC AND FINANCE TRUST I. In further consideration of
the agreements of the Underwriters contained herein, each of UNBC and Finance
Trust I covenants as follows:
(a) To furnish the Managers, without charge, ten conformed copies of
the Registration Statement (including exhibits and, upon request, documents
incorporated therein by reference) and for delivery to each other Underwriter
a conformed copy of the Registration Statement (without exhibits thereto but,
upon request, including documents incorporated therein by reference) and,
during the period mentioned in Section 5(c) hereof, as many copies of the
Prospectus and any supplements and amendments thereto or to the Registration
Statement as the Managers may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish to the Managers
a copy of each such proposed amendment or supplement and not to file any such
proposed
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<PAGE>
amendment or supplement to which the Managers reasonably objects promptly
after reasonable notice thereof.
(c) If, during such period after the first date of the public offering
of the Offered Securities as in the opinion of counsel for the Underwriters
(which counsel shall be reasonably acceptable to UNBC; PROVIDED that Davis
Polk & Wardwell shall be acceptable to UNBC), the Prospectus is required by
law to be delivered in connection with sales by an Underwriter or dealer, any
event shall occur or condition exist as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances existing when the Prospectus is delivered
to a purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare and furnish, at its
own expense, to the Underwriters and to the dealers (whose names and
addresses the Managers will furnish to UNBC and Finance Trust I) to which
Offered Securities may have been sold by the Managers on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus, so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances existing
when the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as so amended or supplemented, will comply with law and to cause
such amendments or supplements to be filed promptly with the Commission.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions in the United
States as the Managers shall reasonably request; PROVIDED that in connection
therewith, neither UNBC nor Finance Trust I shall be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction.
(e) To make generally available to UNBC's security holders and to the
Managers as soon as practicable an earning statement covering a twelve-month
period beginning on the first day of the first full fiscal quarter after the
date of the Underwriting Agreement, which earning statement shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder. If such fiscal quarter is the last
fiscal quarter of UNBC's fiscal year, such earning statement shall be made
available not later than 90 days after the close of the period covered
thereby and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of UNBC or
any securities with characteristics similar to those of the Capital
Securities (other than (i) the Offered Securities, (ii) the Junior
Subordinated Debentures, (iii) the Common Securities and (ii) commercial
paper
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<PAGE>
issued in the ordinary course of business), without the prior written consent
of Morgan Stanley & Co. Incorporated on behalf of the Managers.
(g) Whether or not any sale of Offered Securities is consummated, to
pay or cause to be paid all expenses incident to the performance of the
obligations of UNBC and Finance Trust I under this Agreement, including: (i)
the preparation and filing of the Registration Statement and the Prospectus
and all amendments and supplements thereto, (ii) the preparation, issuance
and delivery of the Offered Securities, (iii) the fees and disbursements of
UNBC's counsel and accountants, of Finance Trust I's counsel and of the
Finance Trustees and their counsel, (iv) the qualification of the Capital
Securities and the Guarantee under securities or Blue Sky laws in accordance
with the provisions of Section 5(d) hereof, including filing fees and the
fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the printing or producing and delivery of
any Blue Sky or Legal Investment memoranda, (v) the printing and delivery to
the Underwriters in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto and of the Prospectus and
any amendments or supplements thereto, (vi) any fees charged by rating
agencies for the rating of the Offered Securities and (vii) all costs and
expenses, if any, incident to listing the Capital Securities on the New York
Stock Exchange.
6. INDEMNIFICATION AND CONTRIBUTION. Each of UNBC and Finance Trust
I, jointly and severally, agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or allegedly untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if UNBC shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
allegedly untrue statement or omission based upon information relating to any
Underwriter furnished to UNBC and Finance Trust I in writing by such
Underwriter through the Managers expressly for use therein; PROVIDED,
HOWEVER, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Offered Securities, or any person controlling such Underwriter, if
a copy of the Prospectus (as then amended or supplemented if UNBC or Finance
Trust I shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if required
by law so to have been delivered, at or prior to the written confirmation of
the sale of the Offered Securities to
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such person, and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage or liability, unless
such failure is the result of non-compliance by UNBC with Section 5(a)
hereof.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless Finance Trust I, the Finance Trustees, UNBC, its directors, its
officers who sign the Registration Statement and each person, if any, who
controls Finance Trust I or UNBC within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from UNBC and Finance Trust I to each Underwriter,
but only with reference to information relating to such Underwriter furnished
to UNBC or Finance Trust I by such Underwriter in writing through the Managers
expressly for use in the Registration Statement, any preliminary prospectus,
the Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related
to such proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Managers, in the case of parties indemnified
pursuant to the second preceding paragraph, and by UNBC and Finance Trust I,
in the case of parties indemnified pursuant to the first preceding paragraph.
The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the third sentence of this paragraph
and the
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indemnifying party is not disputing in good faith the reasonableness of such
fees and expenses of counsel, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
To the extent the indemnification provided for in the first or second
paragraph in this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in
lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by UNBC and Finance
Trust I on the one hand and the Underwriters on the other hand from the
offering of the Offered Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of UNBC and Finance Trust I on the one
hand and the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by UNBC and Finance Trust I on the one hand and the Underwriters on
the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by UNBC and Finance Trust I and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus Supplement, bear to the aggregate public
offering price of the Offered Securities. The relative fault of UNBC and
Finance Trust I on the one hand and of the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue
or allegedly untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by UNBC and
Finance Trust I or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
UNBC, Finance Trust I and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 6 were determined
by pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other
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method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue
or allegedly untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
respective obligations to contribute pursuant to this Section 6 are several
in proportion to the respective amounts of Offered Securities purchased by
each of such Underwriters and not joint. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
7. TERMINATION. This Agreement shall be subject to termination by
notice given by the Managers to UNBC, if (a) after the execution and delivery
of the Underwriting Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the
case may be, any of the New York Stock Exchange, the American Stock Exchange,
the National Association of Securities Dealers, Inc., the Chicago Board of
Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (ii) trading of any securities of UNBC or Finance Trust I shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have
been declared by either Federal or New York State authorities, or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change
in financial markets or any calamity or crisis that, in the judgment of the
Managers, is material and adverse and (b) in the case of any of the events
specified in clauses (i) through (iv), such event, singly or together with
any other such event, makes it, in the judgment of the Managers,
impracticable to market the Offered Securities on the terms and in the manner
contemplated in the Prospectus.
8. DEFAULTING UNDERWRITERS. If, on the Closing Date or the Option
Closing Date, as the case may be, any one or more of the Underwriters shall
fail or refuse to purchase Offered Securities that it has or they have agreed
to purchase hereunder on such date, and the aggregate number of Offered
Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate
number of the Offered Securities to be purchased on such date, the other
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Underwriters shall be obligated severally in the proportions that the number
of Offered Capital Securities set forth opposite their respective names
herein bears to the aggregate number of Offered Capital Securities set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as we may specify, to purchase the Offered Capital Securities
which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; PROVIDED that in no event shall the number
of Offered Capital Securities that any Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this Section 8 by an
amount in excess of one-ninth of such number of Offered Capital Securities
without the written consent of such Underwriter. If, on the Closing Date,
any Underwriter or Underwriters shall fail or refuse to purchase Offered
Capital Securities and the aggregate number of Offered Capital Securities
with respect to which such default occurs is more than one-tenth of the
aggregate number of Offered Capital Securities to be purchased, and
arrangements satisfactory to us and UNBC for the purchase of such Offered
Capital Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or UNBC. In any such case that does not result in termination,
either we or UNBC shall have the right to postpone the Closing Date, but in
no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. If, on the Option Closing Date,
any Underwriter or Underwriters shall fail or refuse to purchase Additional
Capital Securities and the aggregate number of Additional Capital Securities
with respect to which such default occurs is more than one-tenth of the
aggregate number of Additional Capital Securities to be purchased, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase Additional Capital Securities or (ii)
purchase not less than the number of Additional Capital Securities that such
non-defaulting Underwriters would have been obligated to purchase in the
absence of such default. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of UNBC or Finance Trust
I to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason UNBC or Finance Trust I shall be unable to
perform its obligations under this Agreement, UNBC and Finance Trust I
jointly and severally agree to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Offered Securities,
but UNBC and Finance Trust I shall then be under no further liability to any
Underwriter except as provided in Sections 5(g) and 6 hereof.
9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
indemnity and contribution agreements and the representations, warranties and
other statements of
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Finance Trust I, the Regular Trustees, UNBC, its officers and the
Underwriters set forth in this Agreement will remain in full force and
effect, regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of UNBC, its officers or
directors or any person controlling UNBC or on behalf of Finance Trust I, the
Finance Trustees or any person controlling Finance Trust I and (iii)
acceptance of and payment for any of the Offered Securities.
10. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, Finance Trustees and controlling persons referred to in
Section 7 hereof, and no other person will have any right or obligation
hereunder.
11. COUNTERPARTS. The Underwriting Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
12. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
13. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
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EXHIBIT 4.1
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UNIONBANCAL CORPORATION
and
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
Indenture
Dated as of February 19, 1999
Debt Securities
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CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act (as defined herein) and Indenture
dated as of February 19, 1999 between UNIONBANCAL CORPORATION and The First
National Bank of Chicago, a national banking association, as Trustee:
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SECTION OF THE ACT SECTION OF INDENTURE
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310(a)(1) and (2)..........................................................6.9
310(a)(3) and (4).................................................Inapplicable
310(b)............................................6.8 and 6.10(a), (b) and (d)
310(c)............................................................Inapplicable
311(a)....................................................................6.14
311(b)....................................................................6.14
311(c)............................................................Inapplicable
312(a).............................................................4.1 and 4.2
312(b).....................................................................4.2
312(c).....................................................................4.2
313(a).....................................................................4.3
313(b)(1).........................................................Inapplicable
313(b)(2)..................................................................4.3
313(c)..............................................4.3, 5.11, 6.10, 6.11, 8.2
and 12.2
313(d).....................................................................4.3
314(a).............................................................3.5 and 4.2
314(b)............................................................Inapplicable
314(c)(1) and (2).........................................................11.5
314(c)(3).........................................................Inapplicable
314(d)............................................................Inapplicable
314(e)....................................................................11.5
314(f)............................................................Inapplicable
315(a), (c) and (d)........................................................6.1
315(b)....................................................................5.11
315(e)....................................................................5.12
316(a)(1).........................................................5.9 and 5.10
316(a)(2).........................................................Not required
316(a) (last sentence).....................................................7.4
316(b).....................................................................5.7
317(a).....................................................................5.2
317(b)..........................................................3.4(a) and (b)
318(a)....................................................................11.7
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*This Cross Reference Sheet is not part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.1 CERTAIN TERMS DEFINED...........................................1
ARTICLE II
SECURITIES
SECTION 2.1 FORMS GENERALLY.................................................6
SECTION 2.2 FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION.............................................................7
SECTION 2.3 AMOUNT UNLIMITED; ISSUABLE IN SERIES............................8
SECTION 2.4 AUTHENTICATION AND DELIVERY OF SECURITIES......................10
SECTION 2.5 EXECUTION OF SECURITIES........................................13
SECTION 2.6 CERTIFICATE OF AUTHENTICATION..................................13
SECTION 2.7 DENOMINATION AND DATE OF
SECURITIES; PAYMENT OF INTEREST...........................................14
SECTION 2.8 REGISTRATION, TRANSFER AND EXCHANGE............................14
SECTION 2.9 MUTILATED, DEFACED, DESTROYED,
LOST AND STOLEN SECURITIES................................................18
SECTION 2.10 CANCELLATION OF SECURITIES; DESTRUCTION
THEREOF...................................................................19
SECTION 2.11 TEMPORARY SECURITIES..........................................19
ARTICLE III
COVENANTS OF THE ISSUER
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST..............................20
SECTION 3.2 OFFICES FOR PAYMENTS, ETC......................................21
SECTION 3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE
OF TRUSTEE................................................................22
SECTION 3.4 PAYING AGENTS..................................................22
SECTION 3.5 COMPLIANCE CERTIFICATES........................................23
SECTION 3.6 CORPORATE EXISTENCE............................................23
SECTION 3.7 MAINTENANCE OF PROPERTIES......................................23
SECTION 3.8 PAYMENT OF TAXES AND OTHER CLAIMS..............................23
SECTION 3.9 LUXEMBOURG PUBLICATIONS........................................24
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ARTICLE IV
SECURITYHOLDER LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 ISSUER TO FURNISH TRUSTEE INFORMATION
AS TO NAMES AND ADDRESSES OF SECURITYHOLDERS..............................24
SECTION 4.2 REPORTS BY THE ISSUER..........................................24
SECTION 4.3 REPORTS BY THE TRUSTEE.........................................24
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 EVENT OF DEFAULT DEFINED, ACCELERATION
OF MATURITY; WAIVER OF DEFAULT............................................26
SECTION 5.2 COLLECTION OF INDEBTEDNESS BY TRUSTEE;
TRUSTEE MAY PROVE DEBT....................................................30
SECTION 5.3 APPLICATION OF PROCEEDS........................................32
SECTION 5.4 SUITS FOR ENFORCEMENT..........................................33
SECTION 5.5 RESTORATION OF RIGHTS ON ABANDONMENT
OF PROCEEDINGS............................................................33
SECTION 5.6 LIMITATIONS ON SUITS BY SECURITY
HOLDERS...................................................................33
SECTION 5.7 UNCONDITIONAL RIGHT OF SECURITYHOLDERS
TO INSTITUTE CERTAIN SUITS................................................34
SECTION 5.8 POWERS AND REMEDIES CUMULATIVE; DELAY
OR OMISSION NOT WAIVER OF DEFAULT.........................................34
SECTION 5.9 CONTROL BY HOLDERS OF SECURITIES...............................35
SECTION 5.10 WAIVER OF PAST DEFAULTS.......................................35
SECTION 5.11 TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT
MAY WITHHOLD IN CERTAIN CIRCUMSTANCES.....................................35
SECTION 5.12 RIGHT OF COURT TO REQUIRE FILING OF
UNDERTAKING TO PAY COSTS..................................................36
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ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE;
DURING DEFAULT; PRIOR TO DEFAULT..........................................36
SECTION 6.2 CERTAIN RIGHTS OF THE TRUSTEE..................................38
SECTION 6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS,
DISPOSITION OF SECURITIES OR APPLICATION OF PROCEEDS
THEREOF...................................................................39
SECTION 6.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES
OR COUPONS; COLLECTIONS, ETC..............................................39
SECTION 6.5 MONEYS HELD BY TRUSTEE.........................................39
SECTION 6.6 COMPENSATION AND INDEMNIFICATION OF
TRUSTEE AND ITS PRIOR CLAIM...............................................39
SECTION 6.7 RIGHT OF TRUSTEE TO RELY ON OFFICER'S
CERTIFICATE, ETC..........................................................40
SECTION 6.8 INDENTURES NOT CREATING POTENTIAL
CONFLICTING INTERESTS FOR THE TRUSTEE.....................................40
SECTION 6.9 QUALIFICATION OF TRUSTEE; CONFLICTING
INTERESTS.................................................................40
SECTION 6.10 PERSONS ELIGIBLE FOR APPOINTMENT AS
TRUSTEE...................................................................40
SECTION 6.11 RESIGNATION AND REMOVAL; APPOINTMENT
OF SUCCESSOR TRUSTEE......................................................41
SECTION 6.12 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
TRUSTEE...................................................................42
SECTION 6.13 MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS OF TRUSTEE.........................................43
SECTION 6.14 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
THE ISSUER................................................................44
SECTION 6.15 APPOINTMENT OF AUTHENTICATING AGENT...........................44
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 EVIDENCE OF ACTION TAKEN BY SECURITY-
HOLDERS...................................................................45
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SECTION 7.2 PROOF OF EXECUTION OF INSTRUMENTS AND
OF HOLDING OF SECURITIES..................................................45
SECTION 7.3 HOLDERS TO BE TREATED AS OWNERS................................46
SECTION 7.4 SECURITIES OWNED BY ISSUER DEEMED
NOT OUTSTANDING...........................................................46
SECTION 7.5 RIGHT OF REVOCATION OF ACTION TAKEN............................46
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS...........................................................47
SECTION 8.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS...........................................................48
SECTION 8.3 EFFECT OF SUPPLEMENTAL INDENTURE...............................50
SECTION 8.4 DOCUMENTS TO BE GIVEN TO TRUSTEE...............................50
SECTION 8.5 NOTATION ON SECURITIES IN RESPECT OF
SUPPLEMENTAL INDENTURES...................................................51
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 ISSUER MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS.............................................................51
SECTION 9.2 SUCCESSOR CORPORATION SUBSTITUTED..............................51
SECTION 9.3 OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE......................51
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 SATISFACTION AND DISCHARGE OF INDENTURE.......................52
SECTION 10.2 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR
PAYMENT OF SECURITIES.....................................................56
SECTION 10.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT......................56
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SECTION 10.4 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING
AGENT UNCLAIMED FOR TWO YEARS.............................................56
SECTION 10.5 INDEMNITY FOR U.S. GOVERNMENT OF OBLIGATIONS..................57
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 INCORPORATORS, SHAREHOLDERS, OFFICERS AND
DIRECTORS OF ISSUER EXEMPT FROM INDIVIDUAL LIABILITY......................57
SECTION 11.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT
OF PARTIES AND HOLDERS OF SECURITIES AND COUPONS..........................57
SECTION 11.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY
INDENTURE.................................................................58
SECTION 11.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND
HOLDERS OF SECURITIES AND COUPONS.........................................58
SECTION 11.5 OFFICER'S CERTIFICATES AND OPINIONS OF COUNSEL;
STATEMENTS TO BE CONTAINED THEREIN........................................59
SECTION 11.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND
HOLIDAYS..................................................................60
SECTION 11.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH
TRUST INDENTURE ACT.......................................................60
SECTION 11.8 NEW YORK LAW TO GOVERN........................................60
SECTION 11.9 COUNTERPARTS..................................................60
SECTION 11.10 EFFECT OF HEADINGS...........................................60
SECTION 11.11 SECURITIES IN A COMPOSITE CURRENCY,
CURRENCY UNIT, FOREIGN CURRENCY OR IN ECU.................................60
SECTION 11.12 JUDGMENT CURRENCY............................................61
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 APPLICABILITY OF ARTICLE......................................62
SECTION 12.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS.....................62
SECTION 12.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION...................63
SECTION 12.4 EXCLUSION OF CERTAIN SECURITIES FROM
ELIGIBILITY FOR SELECTION FOR REDEMPTION..................................64
SECTION 12.5 MANDATORY AND OPTIONAL SINKING FUNDS..........................64
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THIS INDENTURE, dated as of February 19, 1999, by and between
UNIONBANCAL CORPORATION, a California corporation (the "Issuer"), and The First
National Bank of Chicago, a national banking association, as trustee (the
"Trustee"),
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Issuer and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective holders from time to
time of the Securities and of the coupons, if any, appertaining thereto as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 CERTAIN TERMS DEFINED. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), or the definitions of which in the
Securities Act of 1933, as amended (the "Securities Act"), are referred to in
the Trust Indenture Act, including terms defined therein by reference to the
Securities Act (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meaning assigned to such terms in
the Trust Indenture Act and in the Securities Act as in effect from time to
time. All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of any computation
unless a different time shall be specified with respect to such series of
Securities as provided for in Section 2.3. 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,
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Section or other subdivision. The terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as the
singular.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor provision.
"Authenticating Agent" shall have the meaning set forth in Section
6.15.
"Authorized Newspaper" means a newspaper (which, in the case of The
City of New York, will, if practicable, be THE WALL STREET JOURNAL (Eastern
Edition), in the case of the United Kingdom of Great Britain and Northern
Ireland (the "United Kingdom"), will, if practicable, be THE FINANCIAL TIMES
(London Edition) and, in the case of the Grand Duchy of Luxembourg
("Luxembourg"), will, if practicable, be the LUXEMBURGER WORT) published in an
official or common language of the country of publication customarily published
at least once a day for at least five days in each calendar week and of general
circulation in The City of New York, the United Kingdom or Luxembourg, as
applicable. If it shall be impractical in the opinion of the Trustee to make
any publication of any notice required hereby in an Authorized Newspaper, any
publication or other notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient publication of such
notice.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions, certified
by the secretary or an assistant secretary of the Issuer to have been duly
adopted or consented to by the Board of Directors and to be in full force and
effect, and delivered to the Trustee.
"Business Day" means, with respect to any Security, a day that is not
a day on which banking institutions in the city (or in any of the cities, if
more than one) in which amounts are payable, as specified in the form of such
Security, are authorized or required by any applicable law or regulation to be
closed.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution and delivery of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, as of the date of this Indenture,
located at One North State, 9th Floor, Chicago, IL 60602.
"Coupon" means any interest coupon appertaining to an Unregistered
Security.
"Covenant Defeasance" shall have the meaning set forth in Section
10.1(C).
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"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities, the
Person designated as Depositary by the Issuer pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Registered Global
Securities of that series.
"Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the European Monetary System of the European Community.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Value" when used with respect to any Voting Stock means the fair
value as determined in good faith by the Board of Directors of the Issuer.
"Foreign Currency" means a currency issued by the government of a
country other than the United States of America.
"Holder," "Holder of Securities," "Securityholder" or any other
similar term means (a) in the case of any Registered Security, the person in
whose name such Security is registered in the security register kept by the
Issuer for that purpose in accordance with the terms hereof, and (b) in the case
of any Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"IRS" means the Internal Revenue Service of the United States
Department of the Treasury, or any successor entity.
"Issuer" means (except as otherwise provided in Article IX)
UnionBanCal Corporation, a California corporation, and, subject to Article IX,
its successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer signed in its name by the chairman of the Board of Directors, the
president, any vice president or the treasurer of the Issuer.
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"Judgment Currency" has the meaning set forth in Section 11.12.
"Non-U.S. Person" means any person that is not a "U.S. person" as such
term is defined in Rule 902 of the Securities Act.
"Officer's Certificate" means a certificate signed by the chairman of
the Board of Directors, the president or any vice president or the treasurer of
the Issuer and delivered to the Trustee. Each such certificate shall comply
with Section 314 of the Trust Indenture Act and include the statements provided
for in Section 11.5.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of the Issuer or other counsel satisfactory to
the Trustee. Each such opinion shall comply with Section 314 of the Trust
Indenture Act and include the statements provided for in Section 11.5.
"Original Issue Date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"Outstanding" (except as otherwise provided in Section 7.4), when used
with reference to Securities, means, subject to the provisions of Section 7.4,
as of any particular time, all Securities authenticated and delivered by the
Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys or U.S. Government Obligations (as provided for in Section
10.1) in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Issuer) or shall have been
set aside, segregated and held in trust by the Issuer for the Holders of
such Securities (if the Issuer shall act as its own paying agent),
PROVIDED, that if such Securities, or portions thereof, are to be redeemed
prior to the maturity thereof, notice of such redemption shall have been
given as herein provided, or provisions satisfactory to the Trustee shall
have been made for giving such notice; and
(c) Securities which shall have been paid or in substitution for
which other Securities shall have been authenticated and delivered pursuant
to the terms of Section 2.9 (except with respect to any such Security as to
which proof satisfactory to the Trustee is presented that such Security is
held by a person in whose hands such Security is a legal, valid and binding
obligation of the Issuer).
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In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 5.1.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon the issuance of
such Securities.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any," PROVIDED, HOWEVER, that such inclusion of premium, if any, shall under no
circumstances result in the double counting of such premium for the purpose of
any calculation required hereunder.
"record date" shall have the meaning set forth in Section 2.7.
"Registered Global Security" means a Security evidencing all or a part
of a series of Registered Securities, issued to the Depositary for such series
in accordance with Section 2.4, and bearing the legend prescribed in Section 2.4
and any other legend required by the Depositary for such series.
"Registered Security" means any Security registered on the Security
register of the Issuer.
"Required Currency" shall have the meaning set forth in Section 11.12.
"Responsible Officer" when used with respect to the Trustee means any
officer of the Trustee assigned to administer corporate trust matters to whom
any corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Security" or "Securities" (except as otherwise provided in Section
7.4) has the meaning stated in the first recital of this Indenture, or, as the
case may be, Securities that have been authenticated and delivered under this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
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"Senior Securities" means Securities other than Subordinated
Securities.
"Subordinated Securities" means Securities that by the terms
established pursuant to Subsection 2.3(9) are subordinate to any specified debt
of the Issuer.
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock having the voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether or not at the time stock
of any other class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time of
determination directly or indirectly owned by the Issuer, or by one or more of
its Subsidiaries, or by the Issuer and one or more of its Subsidiaries.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article VI, shall also
include any successor trustee. "Trustee" shall also mean or include each Person
who is then a trustee hereunder, and, if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to the Securities of such series.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.1(A).
"Voting Stock" means stock of any class or classes having general
voting power under ordinary circumstances to elect a majority of the board of
directors, managers or trustees of the corporation in question, PROVIDED, that,
for the purposes hereof, stock which carries only the right to vote
conditionally on the happening of an event shall not be considered voting stock
whether or not such event shall have happened.
"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE II
SECURITIES
SECTION 2.1 FORMS GENERALLY. The Securities of each series and the
Coupons, if any, to be attached thereto shall be substantially in such form (not
inconsistent with this Indenture) as shall be established by or pursuant to one
or more Board Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to but not set forth in a Board Resolution, an Officer's
Certificate detailing such establishment) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the
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provisions of this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by the
officers executing such Securities and Coupons, if any, as evidenced by their
execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
SECTION 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities referred to in the within-mentioned
Indenture.
The First National Bank of Chicago, as Trustee
By
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Authorized Signatory"
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Trustee's Certificate of
Authentication to be borne by the Securities of each such series shall be
substantially as follows:
"This is one of the Securities referred to in the within-mentioned
Indenture.
-----------------------------------------
as Authenticating Agent
By
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Authorized Signatory"
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SECTION 2.3 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 one or more Board Resolutions (and to the extent
established pursuant to but not set forth in a Board Resolution, in an Officer's
Certificate detailing such establishment) or established in one or more
indentures supplemental hereto, prior to the initial issuance of Securities of
any series,
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series, and which may be part of a series of Securities previously issued;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin, currency or currencies in
which the Securities of the series are denominated (including, but not
limited to, any composite currency, currency units, Foreign Currency or
ECU);
(4) the date or dates on which the principal of the Securities
of the series is payable or the method of determination thereof;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, on which such interest shall be payable, the terms and
conditions of any deferral of interest and the additional interest, if any,
thereon, the right, if any, of the Issuer to extend the interest payment
periods and the duration of the extensions and (in the case of Registered
Securities) the date or dates on which a record shall be taken for the
determination of Holders to whom interest is payable and/or the method by
which such rate or rates or date or dates shall be determined;
(6) the place or places where and the manner in which, the
principal of and any interest on Securities of the series shall be payable,
if other than as provided in Section 3.2;
(7) the right, if any, of the Issuer to redeem Securities, in
whole or in part, at its option and the period or periods within which, or
the date or dates on which, the price or prices at which and any terms and
conditions upon which Securities of the series may be so redeemed, pursuant
to any sinking fund or otherwise;
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(8) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder thereof,
and the price or prices at which and the period or periods within which or
the date or dates on which and any terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in whole
or in part, pursuant to such obligation;
(9) the terms, if any, on which the Securities of such series
will be subordinate to other debt of the Issuer;
(10) if other than denominations of $1,000 and any integral
multiple thereof in the case of Registered Securities, or $1,000 and $5,000
in the case of Unregistered Securities, the denominations in which
Securities of the series shall be issuable;
(11) the percentage of the principal amount at which the
Securities will be issued, and, 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;
(12) if other than the coin, currency or currencies in which the
Securities of the series are denominated, the coin, currency or currencies
in which payment of the principal of or interest on the Securities of such
series shall be payable, including composite currencies or currency units;
(13) if the principal of or interest on the Securities of the
series are to be payable, at the election of the Issuer or a Holder
thereof, in a coin or currency other than that in which the Securities are
denominated, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(14) if the amount of payments of principal of and interest on
the Securities of the series may be determined with reference to an index
or formula based on a coin, currency, composite currency or currency unit
other than that in which the Securities of the series are denominated, the
manner in which such amounts shall be determined;
(15) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be issuable
as Registered Global Securities) or Unregistered Securities (with or
without Coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Unregistered Securities or the
payment of interest thereon and, if other than as provided in Section 2.8,
the terms upon which Unregistered Securities of any series may be exchanged
for Registered Securities of such series and vice versa;
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(16) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a person who is
not a U.S. person in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Issuer will have the option to
redeem the Securities of the series rather than pay such additional
amounts;
(17) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, the
form and terms of such certificates, documents or conditions;
(18) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars of any other agents with respect to the
Securities of such series;
(19) any deletion from modification of or addition to the Events
of Default or covenants with respect to the Securities of such series;
(20) if the Securities of the series are to be convertible into
or exchangeable for any other security or property of the Issuer,
including, without limitation, securities of another Person held by the
Issuer or its Affiliates and, if so, the terms thereof; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any,
appertaining thereto shall be substantially identical, except in the case of
Registered Securities as to denomination and except as may otherwise be provided
by or pursuant to the Board Resolution or Officer's Certificate referred to
above or as set forth in any indenture supplemental hereto. All Securities of
any one series need not be issued at the same time and may be issued from time
to time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board Resolution, such Officer's Certificate or in any
indenture supplemental hereto.
SECTION 2.4 AUTHENTICATION AND DELIVERY OF SECURITIES. The
Issuer may deliver Securities of any series having attached thereto appropriate
Coupons, if any, executed by the Issuer to the Trustee for authentication
together with the applicable documents referred to below in this Section 2.4,
and the Trustee shall thereupon authenticate and deliver such Securities and
Coupons, if any, to or upon the order of the Issuer (contained in the Issuer
Order referred to below in this Section) or pursuant to such procedures
acceptable to the Trustee and to such recipients as may be specified from time
to time by an Issuer Order. The maturity date, original issue date, interest
rate and any other terms of the Securities of such series and Coupons, if any,
appertaining thereto shall be determined by or pursuant to such Issuer Order and
procedures. If provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral or electronic instructions from the
Issuer or its duly
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authorized agent or agents, which instructions, if oral, shall be promptly
confirmed in writing. In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive (in the case of subparagraphs (2), (3)
and (4) below only at or before the time of the first request of the Issuer to
the Trustee to authenticate Securities of such series) and (subject to Section
6.1) shall be fully protected in relying upon, the following enumerated
documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities and Coupons, if any, are not to be
delivered to the Issuer, PROVIDED that, with respect to Securities of a
series subject to a Periodic Offering, (a) such Issuer Order may be
delivered by the Issuer to the Trustee prior to the delivery to the Trustee
of such Securities for authentication and delivery, (b) the Trustee shall
authenticate and deliver Securities of such series for original issue from
time to time, in an aggregate principal amount not exceeding the aggregate
principal amount established for such series, pursuant to an Issuer Order
or pursuant to procedures acceptable to the Trustee as may be specified
from time to time by an Issuer Order, (c) the maturity date or dates,
original issue date or dates, interest rate or rates and any other terms of
Securities of such series shall be determined by an Issuer Order or
pursuant to such procedures and (d) if provided for in such procedures,
such Issuer Order may authorize authentication and delivery pursuant to
oral or electronic instructions from the Issuer or its duly authorized
agent or agents, which instructions, if oral, shall be promptly confirmed
in writing;
(2) any Board Resolution, Officer's Certificate and/or executed
supplemental indenture referred to in Section 2.1 and 2.3 by or pursuant to
which the forms and terms of the Securities and Coupons, if any, were
established;
(3) an Officer's Certificate setting forth the form or forms and
terms of the Securities and Coupons, if any, stating that the form or forms
and terms of the Securities and Coupons, if any, have been established
pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and
covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of
Counsel, or a letter addressed to the Trustee permitting it to rely on one
or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any,
have been duly authorized and established in conformity with the
provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the
Securities have been duly authorized and established in conformity
with the provisions of
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this Indenture, and, in the case of an offering that is not
underwritten, certain terms of the Securities have been established
pursuant to a Board Resolution, an Officer's Certificate or a
supplemental indenture in accordance with this Indenture, and when
such other terms as are to be established pursuant to procedures set
forth in an Issuer Order shall have been established, all such terms
will have been duly authorized by the Issuer and will have been
established in conformity with the provisions of this Indenture; and
(c) such Securities and Coupons, if any, when executed by the
Issuer and authenticated by the Trustee in accordance with the
provisions of this Indenture and delivered to and duly paid for by the
purchasers thereof, and subject to any conditions specified in such
Opinion of Counsel, will have been duly issued under this Indenture,
will be entitled to the benefits of this Indenture, and will be valid
and binding obligations of the Issuer, enforceable in accordance with
their respective terms except as the enforceability thereof may be
limited by (i) bankruptcy, insolvency, reorganization, liquidation,
moratorium, fraudulent transfer or similar laws affecting creditors'
rights generally, (ii) rights of acceleration, if any, and (iii) the
availability of equitable remedies may be limited by equitable
principles of general applicability and such counsel need express no
opinion with regard to the enforceability of Section 6.6 or of a
judgment denominated in a currency other than Dollars.
In rendering such opinions, any counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium, fraudulent transfer and
other similar laws affecting the rights and remedies of creditors and is subject
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely upon
opinions of other counsel (copies of which shall be delivered to the Trustee)
reasonably satisfactory to the Trustee, in which case the opinion shall state
that such counsel believes he and the Trustee are entitled so to rely. Such
counsel may also state that, insofar as such opinion involves factual matters,
he has relied, to the extent he deems proper, upon certificates of officers of
the Issuer and its subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee or a trust committee of directors or trustees shall
determine that such action would expose the Trustee to personal liability to
existing Holders or would affect the Trustee's own rights, duties or immunities
under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Registered
Global Securities, then the Issuer shall
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execute and the Trustee shall, in accordance with this Section and the Issuer
Order with respect to such series, authenticate and deliver one or more
Registered Global Securities that (i) shall represent and shall be denominated
in an amount equal to the aggregate principal amount of all of the Securities of
such series issued and not yet cancelled, (ii) shall be registered in the name
of the Depositary for such Registered Global Security or Securities or the
nominee of such Depositary, (iii) shall be delivered by the Trustee to such
Depositary or delivered or held pursuant to such Depositary's instructions and
(iv) shall bear a legend substantially to the following effect: "Unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time
of its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Exchange Act and any other applicable statute or
regulation.
SECTION 2.5 EXECUTION OF SECURITIES. The Securities and each Coupon
appertaining thereto, if any, shall be signed on behalf of the Issuer by the
chairman or vice chairman of its Board of Directors or its president, or any
executive (senior or other), a vice president or its treasurer, under its
corporate seal (except in the case of Coupons) which may, but need not, be
attested. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects
in any such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or Coupon
had not ceased to be such officer of the Issuer; and any Security or Coupon may
be signed on behalf of the Issuer by such persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper officers of the
Issuer, although at the date of the execution and delivery of this Indenture any
such person was not such an officer.
SECTION 2.6 CERTIFICATE OF AUTHENTICATION. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized officers, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. No Coupon shall be entitled to the
benefits of this Indenture or shall be valid and obligatory for any purpose
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until the certificate of authentication on the Security to which such Coupon
appertains shall have been duly executed by the Trustee. The execution of such
certificate by the Trustee upon any Security executed by the Issuer shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture.
SECTION 2.7 DENOMINATION AND DATE OF SECURITIES; PAYMENT OF
INTEREST. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, with respect to the Registered Securities of any
series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series are
not so established, such Securities shall be issuable in denominations of $1,000
and $5,000. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of the
Trustee, as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided in the
Board Resolution referred to in Section 2.3. The Securities of each series
shall bear interest, if any, from the date, and such interest shall be payable
on the dates, established as contemplated by Section 2.3.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Issuer shall default in the payment of the
interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the persons in whose names Outstanding
Registered Securities for such series are registered at the close of business on
a subsequent record date (which shall be not less than five Business Days prior
to the date of payment of such defaulted interest) established by notice given
by mail by or on behalf of the Issuer to the Holders of Registered Securities
not less than 15 days preceding such subsequent record date. The term "record
date" as used with respect to any interest payment date (except a date for
payment of defaulted interest) for the Securities of any series shall mean the
date specified as such in the terms of the Registered Securities of such series
established as contemplated by Section 2.3, or, if no such date is so
established, if such interest payment date is the first day of a calendar month,
the fifteenth day of the preceding calendar month or, if such interest payment
date is the fifteenth day of a calendar month, the first day of such calendar
month, whether or not such record date is a Business Day.
SECTION 2.8 REGISTRATION, TRANSFER AND EXCHANGE. (a) The Issuer will
keep at each office or agency to be maintained for the purpose as provided in
Section
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3.2 for each series of Securities a register or registers in which, subject to
such reasonable regulations as the Issuer may prescribe, it will provide for the
registration of Registered Securities of such series and the registration of
transfer of Registered Securities of such series. Such register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered
Security of any series at any such office or agency to be maintained for the
purpose as provided in Section 3.2, the Issuer shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Registered Security or Registered Securities of the same series, maturity
date, interest rate and original issue date in authorized denominations for a
like aggregate principal amount.
Unregistered Securities (except for any temporary global Unregistered
Securities) and Coupons (except for Coupons attached to any temporary global
Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of any
series (other than a Registered Global Security, except as set forth below) may
be exchanged for a Registered Security or Registered Securities of such series
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Registered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section 3.2
and upon payment, if the Issuer shall so require, of the charges hereinafter
provided. If the Securities of any series are issued in both registered and
unregistered form, at the option of the Holder thereof, except as otherwise
specified pursuant to Section 2.3, Unregistered Securities of any series may be
exchanged for Registered Securities of such series having authorized
denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Issuer that shall
be maintained for such purpose in accordance with Section 3.2, with, in the case
of Unregistered Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default thereto appertaining, and upon payment, if the
Issuer shall so require, of the charges hereinafter provided. At the option of
the Holder thereof, if Unregistered Securities of any series, maturity date,
interest rate and original issue date are issued in more than one authorized
denomination, except as otherwise specified pursuant to Section 2.3, such
Unregistered Securities may be exchanged for Unregistered Securities of such
series having authorized denominations and an equal aggregate principal amount,
upon surrender of such Unregistered Securities to be exchanged at the agency of
the Issuer that shall be maintained for such purpose in accordance with Section
3.2 or as specified pursuant to Section 2.3, with, in the case of Unregistered
Securities that have Coupons attached, all unmatured Coupons and all matured
Coupons in default thereto appertaining, and upon payment, if the Issuer shall
so require, of the charges hereinafter provided. Registered Securities of any
series may not be exchanged for Unregistered Securities of such series unless
(1) otherwise specified pursuant to Section 2.3 and (2) the Issuer has delivered
to the Trustee an Opinion of Counsel that (x) the
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Issuer has received from the IRS a ruling or (y) since the date hereof, there
has been a change in the applicable United States federal income tax law, in
either case to the effect that the inclusion of terms permitting Registered
Securities to be exchanged for Unregistered Securities would result in no United
States federal income tax effect adverse to the Issuer or to any Holder.
Whenever any Securities are so surrendered for exchange, the Issuer shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive. All Securities and
Coupons, if any, surrendered upon any exchange or transfer provided for in this
Indenture shall be promptly cancelled and disposed of by the Trustee, and the
Trustee shall deliver a certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed, by the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days preceding the first
mailing of notice of redemption of Securities of such series to be redeemed or
(b) any Securities selected, called or being called for redemption, in whole or
in part, except, in the case of any Security to be redeemed in part, the portion
thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a
series represented by one or more Registered Global Securities notifies the
Issuer that it is unwilling or unable to continue as Depositary for such
Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the Issuer shall
appoint a successor Depositary eligible under Section 2.4 with respect to such
Registered Securities. If a successor Depositary eligible under Section 2.4 for
such Registered Securities is not appointed by the Issuer within 90 days after
the Issuer receives such notice or becomes aware of such ineligibility, the
Issuer's election pursuant to Section 2.3 that such Registered Securities be
represented by one or more Registered Global Securities shall no longer be
effective and the Issuer will execute, and the Trustee, upon receipt of an
Officer's Certificate for the authentication and
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delivery of definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive registered form without coupons, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities representing
such Registered Securities in exchange for such Registered Global Security or
Securities.
The Issuer may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more
Registered Global Securities shall no longer be represented by a Registered
Global Security or Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of any Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive registered form without coupons, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities representing
such Registered Securities, in exchange for such Registered Global Security or
Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new Registered
Security or Securities of the same series, of any authorized denominations
as requested by such Person, in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Registered Global
Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount
of the surrendered Registered Global Security and the aggregate principal
amount of Registered Securities authenticated and delivered pursuant to
clause (i) above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without coupons, in authorized denominations, such
Registered Global Security shall be cancelled by the Trustee or an agent of the
Issuer or the Trustee. Securities in definitive registered form without coupons
issued in exchange for a Registered Global Security pursuant to this Section 2.8
shall be registered in such names and in such authorized denominations as the
Depositary for such Registered Global Security, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Trustee or
an agent of the Issuer or the Trustee. The Trustee or such agent shall deliver
such Securities to or as directed by the Persons in whose names such Securities
are so registered.
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All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Issuer, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered upon
such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Trustee or any agent of the
Issuer or the Trustee (any of which, other than the Issuer, shall rely on an
Officer's Certificate and an Opinion of Counsel) shall be required to exchange
any Unregistered Security for a Registered Security if such exchange would
result in United States federal income tax consequences adverse to the Issuer
(such as, for example, the inability of the Issuer to deduct from its income, as
computed for United States federal income tax purposes, the interest payable on
the Unregistered Securities) under then applicable United States federal income
tax laws.
SECTION 2.9 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN
SECURITIES. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall be mutilated, defaced, destroyed, lost or
stolen, the Issuer in its discretion may execute and, upon the written request
of any officer of the Issuer, the Trustee shall authenticate and deliver, a new
Security of the same series, maturity date, interest rate and original issue
date, bearing a number or other distinguishing symbol not contemporaneously
outstanding, in exchange and substitution for the mutilated or defaced Security,
or in lieu of and in substitution for the Security so destroyed, lost or stolen
with Coupons corresponding to the Coupons appertaining to the Securities so
mutilated, defaced, destroyed, lost or stolen, or in exchange or substitution
for the Security to which such mutilated, defaced, destroyed, lost or stolen
Coupon appertained, with Coupons appertaining thereto corresponding to the
Coupons so mutilated, defaced, destroyed, lost or stolen. In every case, the
applicant for a substitute Security or Coupon shall furnish to the Issuer and to
the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as may be required by them to indemnify and defend and to save each of
them harmless and, in every case of destruction, loss or theft, evidence to
their satisfaction of the destruction, loss or theft of such Security or Coupon
and of the ownership thereof, and in the case of mutilation or defacement shall
surrender the Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) or its agent connected therewith. In case
any Security or Coupon which has matured or is about to mature or has been
called for redemption in full shall become mutilated or defaced or be destroyed,
lost or stolen, the Issuer may, instead of issuing a substitute Security, pay or
authorize the payment of the same or the relevant Coupon (without surrender
thereof except in the case of a mutilated or defaced Security or Coupon), if the
applicant for such payment shall furnish to the Issuer and to the Trustee and
any agent of the Issuer or the Trustee such security or indemnity as any of them
may require to save each of them harmless, and, in every case of destruction,
loss or theft, the applicant shall also furnish to the Issuer and the Trustee
and any
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agent of the Issuer or the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupons and of the ownership
thereof.
Every substitute Security or Coupon of any series issued pursuant to
the provisions of this Section by virtue of the fact that any such Security or
Coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer, whether or not the destroyed, lost or stolen Security
or Coupon shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set
forth in) this Indenture equally and proportionately with any and all other
Securities or Coupons of such series duly authenticated and delivered hereunder.
All Securities and Coupons shall be held and owned upon the express condition
that, to the extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, defaced or destroyed,
lost or stolen Securities and Coupons and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.10 CANCELLATION OF SECURITIES; DESTRUCTION THEREOF. All
Securities and Coupons surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if any, if surrendered to the Issuer or any agent of the
Issuer or the Trustee or any agent of the Trustee, shall be delivered to the
Trustee or its agent for cancellation or, if surrendered to the Trustee, shall
be cancelled by it; and no Securities or Coupons shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. The
Trustee or its agent shall dispose of cancelled Securities and Coupons held by
it and deliver a certificate of disposition to the Issuer. If the Issuer or its
agent shall acquire any of the Securities or Coupons, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Securities or Coupons unless and until the same are delivered to the Trustee or
its agent for cancellation.
SECTION 2.11 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without coupons, or as Unregistered Securities
with or without coupons attached thereto, of any authorized denomination, and
substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of the
Trustee as evidenced by the execution and authentication thereof. Temporary
Securities may contain such references to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be executed by the Issuer
and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary Registered
Securities of such series may be
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surrendered in exchange therefor without charge at each office or agency to be
maintained by the Issuer for that purpose pursuant to Section 3.2 and, in the
case of Unregistered Securities, at any agency maintained by the Issuer for such
purpose as specified pursuant to Section 2.3, and the Trustee shall authenticate
and deliver in exchange for such temporary Securities of such series an equal
aggregate principal amount of definitive Securities of the same series having
authorized denominations and, in the case of Unregistered Securities, having
attached thereto any appropriate Coupons. Until so exchanged, the temporary
Securities of any series shall be entitled to the same benefits under this
Indenture as definitive Securities of such series, unless otherwise established
pursuant to Section 2.3. The provisions of this Section are subject to any
restrictions or limitations on the issue and delivery of temporary Unregistered
Securities of any series that may be established pursuant to Section 2.3
(including any provision that Unregistered Securities of such series initially
be issued in the form of a single global Unregistered Security to be delivered
to a depositary or agency located outside the United States and the procedures
pursuant to which definitive or global Unregistered Securities of such series
would be issued in exchange for such temporary global Unregistered Security).
ARTICLE III
COVENANTS OF THE ISSUER
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, if any,
each of the Securities of such series (together with any additional amounts
payable pursuant to the terms of such Securities) at the place or places, at the
respective time or times and in the manner provided in such Securities and in
the Coupons, if any, appertaining thereto and in this Indenture. The interest
on Securities with Coupons attached (together with any additional amounts
payable pursuant to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such interest installments
as are evidenced thereby as they severally mature. If any temporary
Unregistered Security provides that interest thereon may be paid while such
Security is in temporary form, the interest on any such temporary Unregistered
Security (together with any additional amounts payable pursuant to the terms of
such Security) shall be paid, as to the installments of interest evidenced by
Coupons attached thereto, if any, only upon presentation and surrender thereof,
and, as to the other installments of interest, if any, only upon presentation of
such Securities for notation thereon of the payment of such interest, in each
case subject to any restrictions that may be established pursuant to Section
2.3. The interest, if any, on Registered Securities (together with any
additional amounts payable pursuant to the terms of such Securities) shall be
payable only to or upon the written order of the Holders thereof and, at the
option of the Issuer, may be paid by wire transfer or by mailing checks for such
interest payable to or upon the written order of such Holders at their last
addresses as they appear on the Securities register of the Issuer.
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SECTION 3.2 OFFICES FOR PAYMENTS, ETC. So long as any Registered
Securities are authorized for issuance pursuant to this Indenture or are
outstanding hereunder, the Issuer will maintain in the Borough of Manhattan, The
City of New York, an office or agency where the Registered Securities of each
series may be presented for payment, where the Securities of each series may be
presented for exchange as is provided in this Indenture and, if applicable,
pursuant to Section 2.3 and where the Registered Securities of each series may
be presented for registration of transfer as in this Indenture provided.
The Issuer will maintain one or more offices or agencies in a city or
cities located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange on
which the Securities of such series are listed) where the Unregistered
Securities, if any, of each series and Coupons, if any, appertaining thereto may
be presented for payment. No payment on any Unregistered Security or Coupon
will be made upon presentation of such Unregistered Security or Coupon at an
agency of the Issuer within the United States nor will any payment be made by
transfer to an account in, or by mail to an address in, the United States unless
pursuant to applicable United States laws and regulations then in effect such
payment can be made without tax consequences adverse to the Issuer.
Notwithstanding the foregoing, payments in Dollars of Unregistered Securities of
any series and Coupons appertaining thereto which are payable in Dollars may be
made at an agency of the Issuer maintained in the Borough of Manhattan, The City
of New York if such payment in Dollars at each agency maintained by the Issuer
outside the United States for payment on such Unregistered Securities is illegal
or effectively precluded by exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City of New
York, an office or agency where notices and demands to or upon the Issuer in
respect of the Securities of any series, the Coupons appertaining thereto or
this Indenture may be served.
The Issuer will give to the Trustee written notice of the location of
each such office or agency and of any change of location thereof. In case the
Issuer shall fail to maintain any agency required by this Section to be located
in the Borough of Manhattan, The City of New York, or shall fail to give such
notice of the location or for any change in the location of any of the above
agencies, presentations and demands may be made and notices may be served at the
Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more additional
offices or agencies where the Securities of a series and any Coupons
appertaining thereto may be presented for payment, where the Securities of that
series may be presented for exchange as provided in this Indenture and pursuant
to Section 2.3 and where the Registered Securities of that series may be
presented for registration of transfer as in this Indenture provided, and the
Issuer may from time to time rescind any such designation, as the Issuer may
deem desirable or expedient; PROVIDED, that no such designation or rescission
shall in any manner relieve the Issuer of its obligations to maintain the
agencies provided for in this Section. The Issuer shall give to the Trustee
prompt written notice of any such designation or rescission thereof.
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SECTION 3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.10, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.4 PAYING AGENTS. Whenever the Issuer shall appoint a paying
agent other than the Trustee with respect to the Securities of any series, it
will cause such paying agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provisions of
this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other
obligor on the Securities of such series) in trust for the benefit of the
Holders of the Securities of such series, or Coupons appertaining thereto,
if any, or of the Trustee;
(b) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities of such series) to make any
payment of the principal of or interest on the Securities of such series
when the same shall be due and payable; and
(c) that it will pay any such sums so held in trust by it to the
Trustee upon the Trustee's written request at any time during the
continuance of the failure referred to in the foregoing clause (b).
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such series or the
Coupons appertaining thereto a sum sufficient to pay such principal or interest
so becoming due. The Issuer will promptly notify the Trustee of any failure to
take such action.
Anything in this Section to the contrary notwithstanding, but subject
to Section 10.1, the Issuer may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for any such series by the Issuer or any paying
agent hereunder, as required by this Section, such sums to be held by the
Trustee upon the trusts herein contained.
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Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.3 and 10.4.
SECTION 3.5 COMPLIANCE CERTIFICATES. The Issuer will furnish to the
Trustee on or before January 31 in each year (beginning with January 31, 2000) a
brief certificate (which need not comply with Section 11.5) from the principal
executive, financial or accounting officer of the Issuer stating that in the
course of the performance by the signer of his or her duties as an officer of
the Issuer he or she would normally have knowledge of any default or
non-compliance by the Issuer in the performance of any covenants or conditions
contained in this Indenture, stating whether or not he or she has knowledge of
any such default or non-compliance and, if so, describing each such default or
non-compliance of which the signer has knowledge and the nature thereof.
SECTION 3.6 CORPORATE EXISTENCE. Subject to Article IX, the Issuer
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence and the rights (charter and statutory),
licenses and franchises of the Issuer and its Subsidiaries; PROVIDED, that the
Issuer shall not be required to preserve any such right, license or franchise,
if, in the judgment of the Issuer, the preservation thereof is no longer
desirable in the conduct of the business of the Issuer and its Subsidiaries
taken as a whole and the loss thereof is not disadvantageous in any material
respect to the Securityholders.
SECTION 3.7 MAINTENANCE OF PROPERTIES. The Issuer will cause all
properties used in or useful in the conduct of its business or the business of
any Subsidiary to be maintained and kept in good condition, repair, and working
order and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Issuer may be necessary, so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times, except to the extent that the Issuer may be prevented from so
doing by circumstances beyond its control; PROVIDED, that nothing in this
Section shall prevent the Issuer from discontinuing the operation or maintenance
of any of such properties, or disposing of any of them, if such discontinuance
or disposal is, in the judgment of the Issuer desirable in the conduct of the
business of the Issuer or any Subsidiary and not disadvantageous in any material
respect to the Securityholders.
SECTION 3.8 PAYMENT OF TAXES AND OTHER CLAIMS. The Issuer will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent: (a) all taxes, assessments and governmental charges levied or
imposed upon the Issuer or any Subsidiary or upon the income, profits or
property of the Issuer or any Subsidiary; and (b) all lawful claims for labor,
materials and supplies, which, if unpaid, might by law become a lien upon the
property of the Issuer or any Subsidiary; PROVIDED, that the Issuer 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; and PROVIDED FURTHER that
the Issuer shall not be required to cause to be paid or
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discharged any such tax, assessment, charge or claim if the Issuer shall
determine that such payment is not advantageous to the conduct of the business
of the Issuer and its Subsidiaries taken as a whole and that the failure so to
pay or discharge is not disadvantageous in any material respect to the
Securityholders.
SECTION 3.9 LUXEMBOURG PUBLICATIONS. In the event of the publication
of any notice pursuant to Section 5.11, 6.10(a), 6.11, 8.2, 10.4 or 12.2, the
party making such publication in the Borough of Manhattan, The City of New York
and London shall also, to the extent that notice is required to be given to
Holders of Securities of any series by applicable Luxembourg law or stock
exchange regulation, as evidenced by an Officer's Certificate delivered to such
party, make a similar publication in Luxembourg.
ARTICLE IV
SECURITYHOLDER LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND
ADDRESSES OF SECURITYHOLDERS. If and so long as the Trustee shall not be the
Security registrar for the Securities of any series, the Issuer and any other
obligor on the Securities will furnish or cause to be furnished to the Trustee a
list in such form as the Trustee may reasonably require of the names and
addresses of the Holders of the Registered Securities of such series pursuant to
Section 312 of the Trust Indenture Act:
(a) semi-annually not more than 5 days after each record date for the
payment of interest on such Registered Securities, as hereinabove
specified, as of such record date and on dates to be determined pursuant to
Section 2.3 for non-interest bearing Registered Securities in each year;
and
(b) at such other times as the Trustee may reasonably request in
writing, within thirty days after receipt by the Issuer of any such request
as of a date not more than 15 days prior to the time such information is
furnished.
SECTION 4.2 REPORTS BY THE ISSUER. The Issuer covenants to file with
the Trustee, within 15 days after the Issuer is required to file the same with
the Commission, copies of the annual reports and of the information, documents,
and other reports that the Issuer may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act or pursuant to
Section 314 of the Trust Indenture Act.
SECTION 4.3 REPORTS BY THE TRUSTEE.
(a) On or before the first July 15 which occurs not less than 60 days
after the earliest date of issuance of any Securities and on or before July
15 in each year thereafter,
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so long as any Securities are Outstanding hereunder, the Trustee shall
transmit by mail as provided below to the Securityholders of each series of
outstanding Securities, as hereinafter in this Section provided, a brief
report dated as of the preceding May 15 with respect to:
(i) its eligibility under Section 6.10 and its qualification
under Section 6.9, or in lieu thereof, if to the best of its knowledge
it has continued to be eligible and qualified under such Sections, a
written statement to such effect;
(ii) the character and amount of any advances (and if the
Trustee elects to so 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 of such
series, 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 remaining unpaid aggregate
not more than 0.5% of the principal of the Securities of such series
outstanding on the date of such report;
(iii) the amount, interest rate and maturity date of all other
indebtedness owing by the Issuer (or any other obligor on the
Securities of such series) to the Trustee in its individual capacity
on the date of such report, with a brief description of any property
held as collateral security therefor, except any indebtedness based
upon a creditor relationship;
(iv) the property and funds, if any, physically in the
possession of the Trustee (as such) in respect of the Securities of
such series on the date of such report;
(v) any additional issue of Securities of such series which the
Trustee has not previously reported; and
(vi) any action taken by the Trustee in the performance of its
duties under this Indenture which the Trustee has not previously
reported and which in the Trustee's opinion materially affects the
Securities of such series, except action in respect of a default,
notice of which has been or is to be withheld by it in accordance with
the provisions of Section 5.11.
(b) The Trustee shall transmit to the Securityholders of each series,
as provided in subsection (c) of this Section, 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) in respect of the Securities of such series since the
date of the last report transmitted pursuant to the provisions of
subsection (a) of
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this Section (or if no such report has yet been so transmitted, since the
date of this Indenture) for the reimbursement of which it claims or may
claim a lien or charge prior to that of the Securities of such series on
property or funds held or collected by it as Trustee and which it has not
previously reported pursuant to this subsection (b), 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 Securities of such series outstanding at such time,
such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail to
all Holders of Securities of such series, as the names and addresses of
such Holders appear upon the Securities register as of a date not more than
15 days prior to the mailing thereof.
(d) A copy of each such report shall, at the time of such
transmission to Securityholders, be furnished to the Issuer and be filed by
the Trustee with each stock exchange upon which the Securities of such
series are listed and also with the Commission. The Issuer agrees to
notify the Trustee when and as Securities of any series become listed on
any national securities exchange.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 EVENT OF DEFAULT DEFINED, ACCELERATION OF MATURITY;
WAIVER OF DEFAULT. "Event of Default" with respect to Securities of any series,
wherever used herein, means any one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; provided
that, a valid extension of an interest payment period by the Issuer in
accordance with the terms of such Securities shall not constitute a failure
to pay interest; or
(b) default in the payment of all or any part of the principal or
premium (if any) on any of the Securities of such series as and when the
same shall become due and payable either at maturity, upon any redemption,
by declaration or otherwise; or
(c) default in the payment of any sinking fund installment as and
when the same shall become due and payable by the terms of the Securities
of such series; or
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(d) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in the
Securities of such series or contained in this Indenture (other than a
covenant or agreement included in this Indenture solely for the benefit of
a series of Securities other than such series) for a period of 90 days
after the date on which written notice specifying such failure, stating
that such notice is a "Notice of Default" hereunder and demanding that the
Issuer remedy the same, shall have been given by registered or certified
mail, return receipt requested, to the Issuer by the Trustee, or to the
Issuer and the Trustee by the holders of at least 25% in aggregate
principal amount of the Outstanding Securities of the series to which such
covenant or agreement relates; or
(e) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Issuer for any
substantial part of its or their property or ordering the winding up or
liquidation of its or their affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(f) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under
any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Issuer or for any substantial part of its or their
property, or make any general assignment for the benefit of creditors; or
(g) any other Event of Default provided in the supplemental indenture
or Board Resolution under which such series of Securities is issued or in
the form of Security for such series.
If an Event of Default described in clause (a), (b) or (c) occurs and
is continuing, then, and in each and every such case, except for any series of
Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of each such affected series then Outstanding hereunder
(each such series voting as a separate class) by notice in writing to the Issuer
(and to the Trustee if given by Securityholders), may declare the entire
principal (or, if the Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all Securities of such series, and the interest accrued
thereon, if any, to be due and payable immediately, and upon any such
declaration, the same shall become immediately due and payable.
Except as otherwise provided in the terms of any series of Senior
Securities pursuant to Section 2.3, if an Event of Default described in clause
(d) or (g) above with respect
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to all series of the Senior Securities then Outstanding, occurs and is
continuing, then, and in each and every such case, unless the Principal of all
of the Senior Securities shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of all
of the Senior Securities then Outstanding hereunder (treated as one class) by
notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Senior Securities
of any series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of all of the
Senior Securities then Outstanding, and the interest accrued thereon, if any, to
be due and payable immediately, and upon such declaration, the same shall become
immediately due and payable. If an Event of Default described in clause (e) or
(f) above occurs and is continuing, then the principal amount of all the Senior
Securities then Outstanding, and the interest accrued thereon, if any, shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
Except as otherwise provided in the terms of any series of
Subordinated Securities pursuant to Section 2.3, if an Event of Default
described in clause (d) or (g) above with respect to all series of Subordinated
Securities then Outstanding, occurs and is continuing, then, and in each and
every such case, unless the Principal of all of the Subordinated Securities
shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of all of the Subordinated
Securities then Outstanding hereunder (treated as one class) by notice in
writing to the Issuer (and to the Trustee if given by Securityholders), may
declare the entire principal (or, if the Subordinated Securities of any series
are Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of such series) of all of the Subordinated
Securities then Outstanding, and the interest accrued thereon, if any, to be due
and payable immediately, and upon such declaration, the same shall become
immediately due and payable. If an Event of Default described in clause (e) or
(f) above occurs and is continuing, then the principal amount of all of the
Subordinated Securities then Outstanding, and the interest accrued thereon, if
any, shall become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
If an Event of Default described in clause (d) or (g) occurs and is
continuing, which Event of Default is with respect to less than all series of
Senior Securities then Outstanding, then, and in each and every such case,
except for any series of Senior Securities the principal of which shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Senior Securities of each such
affected series then Outstanding hereunder (each such series voting as a
separate class) by notice in writing to the Issuer (and to the Trustee if given
by Securityholders), may declare the entire principal (or, if the Securities of
such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of all
Securities of such series, and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration, the same shall become
immediately due and payable.
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If an Event of Default described in clause (d) or (g) occurs and is
continuing, which Event of Default is with respect to less than all series of
Subordinated Securities then Outstanding, then, and in each and every such case,
except for any series of Subordinated Securities the principal of which shall
have already become due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Subordinated Securities of
each such affected series then Outstanding hereunder (each such series voting as
a separate class) by notice in writing to the Issuer (and to the Trustee if
given by Securityholders), may declare the entire principal (or, if the
Securities of such series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of such series) of all
Securities of such series, and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration, the same shall become
immediately due and payable.
The foregoing provisions are subject to the condition that if, at any
time after the principal (or, if the Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof) of the Securities of any series (or of all the Securities, as the case
may be) shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided,
(A) the Issuer shall pay or shall deposit with the Trustee a sum
sufficient to pay
(i) all matured installments of interest upon all the
Securities of such series (or all the Securities, as the case may be);
and
(ii) the principal of any and all Securities of such series (or
of all the Securities, as the case may be) which shall have become due
otherwise than by acceleration; and
(iii) interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series (or at the
respective rates of interest or Yields to Maturity of all the
Securities, as the case may be) to the date of such payment or
deposit; and
(iv) all amounts payable to the Trustee pursuant to Section 6.6;
and
(B) all Events of Default under the Indenture, other than the
non-payment of the principal of Securities which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied as
provided herein,
then and in every such case the Holders of a majority in aggregate principal
amount of all the Securities of such series voting as a separate class (or all
the Securities, as the case may be, voting
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as a single class), then Outstanding, by written notice to the Issuer and to the
Trustee, may waive all defaults with respect to such series (or with respect to
all the Securities, as the case may be) and rescind and annul such declaration
and its consequences, but no such waiver or rescission and annulment shall
extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 5.2 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE
DEBT. The Issuer covenants that (a) in case default shall be made in the payment
of any installment of interest on any of the Securities of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days, or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise, then upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series,
and such Coupons, for principal and interest, as the case may be (with interest
to the date of such payment upon the overdue principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series); and in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, and such
other amount due the Trustee under Section 6.6 in respect of Securities of such
series.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the registered
Holders, whether or not the Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name as trustee of an express trust, shall be
entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon the Securities
and collect
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in the manner provided by law out of the property of the Issuer or other obligor
upon the Securities, wherever situated, all the moneys adjudged or decreed to be
payable.
In case there shall be pending proceedings relative to the Issuer or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities, or to the creditors or property of the Issuer or
such other obligor, the Trustee, irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the
Securities of any series, and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for amounts payable to the Trustee under Section 6.6)
and of the Securityholders allowed in any judicial proceedings relative to
the Issuer or other obligor upon the Securities, or to the creditors or
property of the Issuer or such other obligor; and
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities of any series in any election of a
receiver, assignee, trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency proceedings,
custodian or other person performing similar functions in respect of any
such proceedings; and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, or liquidator, custodian or other
similar official performing similar functions in respect of any such
proceedings is hereby authorized by each of the Securityholders to make
payments to the Trustee, and, in the event that the Trustee shall consent
to the making of payments directly to the Securityholders, to pay to the
Trustee its costs and expenses of collection and all other amounts due to
it pursuant to Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or
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the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Securityholder in any such proceeding, except as aforesaid
in clause (b).
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series or Coupons appertaining to such
Securities, may be enforced by the Trustee without the possession of any of the
Securities of such series or Coupons appertaining to such Securities or the
production thereof in any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall be
awarded to the Trustee for ratable distribution to the Holders of the Securities
or Coupons appertaining to such Securities in respect of which such action was
taken, after payment of all sums due to the Trustee under Section 6.6 in respect
of such Securities.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities or Coupons appertaining to such Securities in respect to which
such action was taken, and it shall not be necessary to make any Holders of such
Securities or Coupons appertaining to such Securities parties to any such
proceedings.
SECTION 5.3 APPLICATION OF PROCEEDS. Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall be applied in
the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining to such
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series of Securities in respect of which monies have been collected,
including all amounts due to the Trustee and each predecessor Trustee
pursuant to Section 6.6 in respect to such series of Securities;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments on such interest, with interest (to the extent that
such interest has been collected by the Trustee and is permitted by
applicable law) upon the overdue installments of interest at the same
rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
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THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for principal
and interest, with interest upon the overdue principal, and (to the
extent that such interest has been collected by the Trustee and is
permitted by applicable law) upon the overdue installations of
interest at the same rate as the rate of interest or Yield to Maturity
(in the case of Original Issue Discount Securities) specified in the
Securities of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon
the Securities of such series, then to the payment of such principal
and interest or Yield to Maturity, without preference or priority of
principal over interest or Yield to Maturity, or of interest or Yield
to Maturity over principal, or of any installment of interest over any
other installment of interest or of any Security of such series over
any other Security of such series, ratably to the aggregate of such
principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer
or any other person lawfully entitled thereto.
SECTION 5.4 SUITS FOR ENFORCEMENT. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.5 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS. In
case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 5.6 LIMITATIONS ON SUITS BY SECURITY HOLDERS. No Holder of any
Security of any series or of any Coupon appertaining thereto shall have any
right by virtue or by availing of any provision of this Indenture to institute
any action or proceeding at law or in equity or in bankruptcy or otherwise upon
or under or with respect to this Indenture or such Security, or for the
appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder or thereunder, unless (a) such Holder
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previously shall have given to the Trustee written notice of an Event of Default
with respect to Securities of such series and of the continuance thereof, as
hereinbefore provided, and (b) the Holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding (treated as a
single class) shall have made written request upon the Trustee to institute such
action or proceedings in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and (c) the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding, and (d)
no direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 5.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security or Coupon with
every other taker and Holder and the Trustee, that no one or more Holders of
Securities of any series or Coupons appertaining to such Securities shall have
any right in any manner whatever by virtue or by availing of any provision of
this Indenture or any Security to affect, disturb or prejudice the rights of any
other such taker or Holder of Securities or Coupons appertaining to such
Securities, or to obtain or seek to obtain priority over or preference to any
other such taker or Holder or to enforce any right under this Indenture or any
Security, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series and Coupons
appertaining to such Securities. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
SECTION 5.7 UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE
CERTAIN SUITS. Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any Holder of any Security or Coupon to
receive payment of the principal of and interest on such Security or Coupon on
or after the respective due dates expressed in such Security or Coupon or the
applicable redemption dates provided for in such Security, or to institute suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
SECTION 5.8 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER OF DEFAULT. Except as provided in Section 5.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities or
Coupons is intended to be exclusive of any other right or remedy and every right
and remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Securities or
Coupons to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein. Every power and remedy given by this Indenture, any
Security or law to the Trustee or to the Holders of Securities or Coupons may be
exercised
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from time to time, and as often as shall be deemed expedient, by the Trustee or,
subject to Section 5.6, by the Holders of Securities or Coupons.
SECTION 5.9 CONTROL BY HOLDERS OF SECURITIES. The Holders of a
majority in aggregate principal amount of the Securities of each series affected
(with each such series voting as a separate class) at the time Outstanding shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee with respect to the Securities of such series by this
Indenture; PROVIDED, that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture; and PROVIDED, FURTHER,
that (subject to the provisions of Section 6.1) the Trustee shall have the right
to decline to follow any such direction if (a) the Trustee, being advised by
counsel, shall determine that the action or proceeding so directed may not
lawfully be taken; or (b) if the Trustee by its board of directors, the
executive committee or a trust committee of directors or Responsible Officers of
the Trustee shall determine in good faith that the action or proceedings so
directed would involve the Trustee in personal liability; or (c) if the Trustee
in good faith shall so determine that the actions or forbearances specified in
or pursuant to such direction would be unduly prejudicial to the interests of
Holders of the Securities of all affected series not joining in the giving of
said direction, it being understood that (subject to Section 6.1) the Trustee
shall have no duty to ascertain whether or not such actions or forbearances are
unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 5.10 WAIVER OF PAST DEFAULTS. Prior to the declaration of
acceleration of the maturity of the Securities of any series as provided in
Section 5.1, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time Outstanding (voting as a single class) may
on behalf of the Holders of all such Securities waive any past default or Event
of Default described in Section 5.1 and its consequences, except a default in
respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Security affected. In the case of any
such waiver, the Issuer, the Trustee and the Holders of all such Securities
shall be restored to their former positions and rights hereunder, respectively,
and such default shall cease to exist and be deemed to have been cured and not
to have occurred for purposes of this Indenture; but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
SECTION 5.11 TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN
CERTAIN CIRCUMSTANCES. The Trustee shall, within ninety days after the
occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to that series known to the Trustee (i)
if any Unregistered Securities of that series are then Outstanding, to the
Holders thereof, by publication at least once in an Authorized Newspaper in
the Borough of Manhattan, The City of New York and at least once in an
Authorized
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Newspaper in London (and, if required by Section 3.9, at least once in an
Authorized Newspaper in Luxembourg) and (ii) to all Holders of Securities of
such series in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, unless in each case such defaults shall have been cured
before the mailing or publication of such notice (the term "default" for the
purpose of this Section being hereby defined to mean any event or condition
which is, or with notice or lapse of time or both would become, an Event of
Default); PROVIDED, that, except in the case of default in the payment of the
principal of or interest on any of the Securities of such series, or in the
payment of any sinking fund installment on such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors or trustees and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders of such
series.
SECTION 5.12 RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY
COSTS. All parties to this Indenture agree, and each Holder of any Security or
Coupon by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clause (d) or (g) of Section 5.1 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities then Outstanding and affected thereby,
or in the case of any suit relating to or arising under clause (d) or (g) (if
the suit under clause (d) or (g) relates to all the Securities then Outstanding)
or (e) or (f) of Section 5.1, 10% in aggregate principal amount of all
Securities then Outstanding, or to any suit instituted by any Securityholder for
the enforcement of the payment of the principal of or interest on any Security
on or after the due date expressed in such Security or any date fixed for
redemption.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING
DEFAULT; PRIOR TO DEFAULT. Prior to the occurrence of an Event of Default with
respect to the Securities of a particular series and after the curing or waiving
of all Events of Default which may have occurred with respect to such series,
the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture with respect to such series of
Securities. In case an Event of Default with respect to the Securities of a
series has
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occurred and has not been cured or waived, the Trustee shall exercise with
respect to such series of Securities such of the rights and powers vested in it
by this Indenture with respect to such series of Securities, and use the same
degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of his or her own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such
Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to
the Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders pursuant to Section 5.9 relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable
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ground for believing that the repayment of such funds or adequate indemnity
against such liability is not reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and subject
to Section 315 of the Trust Indenture Act.
SECTION 6.2 CERTAIN RIGHTS OF THE TRUSTEE. In furtherance of and
subject to the Trust Indenture Act, and subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officer's Certificate (unless
other evidence in respect thereof is specifically prescribed herein or in
the terms established in respect of any series); and any resolution of the
Board of Directors may be evidenced to the Trustee by a copy thereof
certified by the secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any written advice or
any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken
by it hereunder in good faith and in reliance thereon in accordance with
such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note,
coupon, security or other paper or document unless (i) requested in writing
so to do by the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then Outstanding (treated
as one class) or (ii)
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otherwise provided in the terms of any series of Securities pursuant to
Section 2.3; PROVIDED, that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the Issuer
or, if paid by the Trustee or any predecessor trustee, shall be repaid by
the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
SECTION 6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF
SECURITIES OR APPLICATION OF PROCEEDS THEREOF. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities or Coupons. The
Trustee shall not be accountable for the use or application by the Issuer of any
of the Securities or of the proceeds thereof.
SECTION 6.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES OR COUPONS;
COLLECTIONS, ETC. The Trustee or any agent of the Issuer or of the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities or Coupons with the same rights it would have if it were not the
Trustee or such agent and may otherwise deal with the Issuer and receive,
collect, hold and retain collections from the Issuer with the same rights it
would have if it were not the Trustee or such agent.
SECTION 6.5 MONEYS HELD BY TRUSTEE. Subject to the provisions of
Section 10.4 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 6.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR
CLAIM. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable
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compensation and the expenses and disbursements of its counsel and of all agents
and other persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Issuer also covenants to indemnify the Trustee and each predecessor trustee for,
and to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including the costs and expenses of defending itself against
or investigating any claim of liability in the premises. The obligations of the
Issuer under this Section to compensate and indemnify the Trustee and each
predecessor trustee and to pay or reimburse the Trustee and each predecessor
trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture and the resignation or removal of the Trustee. Such additional
indebtedness shall be a senior claim to that of the Securities upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the Holders of particular Securities or Coupons, and the
Securities are hereby subordinated to such senior claim.
SECTION 6.7 RIGHT OF TRUSTEE TO RELY ON OFFICER'S CERTIFICATE,
ETC. Subject to Sections 6.1 and 6.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officer's Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.8 INDENTURES NOT CREATING POTENTIAL CONFLICTING INTERESTS
FOR THE TRUSTEE. The following indentures are hereby specifically described for
the purposes of Section 310(b)(1) of the Trust Indenture Act: this Indenture
with respect to series of Securities that are of an equal priority.
SECTION 6.9 QUALIFICATION OF TRUSTEE; CONFLICTING INTERESTS. The
Trustee shall comply with Section 310(b) of the Trust Indenture Act.
SECTION 6.10 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The Trustee
for each series of Securities hereunder shall at all times be a corporation or
banking association organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, having a
combined capital and surplus of at least $50,000,000, and which is authorized
under such laws to exercise corporate trust powers and is subject to supervision
or examination by Federal, state or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this
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Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 6.11.
The provisions of this Section 6.10 are in furtherance of and subject
to Section 310(a) of the Trust Indenture Act.
SECTION 6.11 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
TRUSTEE. (a) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign with respect to one or more or all series of Securities by
giving written notice of resignation to the Issuer and (i) if any Unregistered
Securities of a series affected are then Outstanding, by giving notice of such
resignation to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York, and at
least once in an Authorized Newspaper in London (and, if required by Section
3.9, at least once in an Authorized Newspaper in Luxembourg), (ii) if any
Unregistered Securities of a series affected are then Outstanding, by mailing
notice of such resignation to the Holders thereof who have filed their names and
addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture
Act at such addresses as were so furnished to the Trustee and (iii) by mailing
notice of such resignation to the Holders of then Outstanding Registered
Securities of each series affected at their addresses as they shall appear on
the registry books. Upon receiving such notice of resignation, the Issuer shall
promptly appoint a successor trustee or trustees with respect to the applicable
series by written instrument in duplicate, executed by authority of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee or trustees. If no successor
trustee shall have been so appointed with respect to any series and have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder
who has been a bona fide Holder of a Security or Securities of the applicable
series for at least six months may, subject to the provisions of Section 5.12,
on behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act with respect to any series
of Securities after written request therefor by the Issuer or by any
Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.10 and Section 310(a) of the Trust
Indenture Act and
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shall fail to resign after written request therefor by the Issuer or
by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 315(e) of the Trust Indenture Act, any Securityholder who has been a
bona fide Holder of a Security or Securities of such series for at least six
months may on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and so prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove
the Trustee with respect to Securities of such series and appoint a
successor trustee with respect to the Securities of such series by
delivering to the Trustee so removed, to the successor trustee so appointed
and to the Issuer the evidence provided for in Section 7.1 of the action in
that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 6.11 shall become
effective upon acceptance of appointment by the successor trustee as
provided in Section 6.12.
SECTION 6.12 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any
successor trustee appointed as provided in Section 6.11 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 10.4,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights,
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powers, duties and obligations. Upon request of any such successor trustee, the
Issuer shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights
and powers. Any trustee ceasing to act shall, nevertheless, retain a prior
claim upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor trustee with respect to the
Securities of any series as to which the predecessor trustee is not retiring
shall continue to be vested in the predecessor trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.12 unless at the time of such
acceptance such successor trustee shall be qualified under Section 310(b) of the
Trust Indenture Act and eligible under the provisions of Section 6.10.
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.12, the Issuer shall give notice thereof (a) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof, by
publication of such notice at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 3.9, at least once in an
Authorized Newspaper in Luxembourg), (b) if any Unregistered Securities of a
series affected are then Outstanding, to the Holders thereof who have filed
their names and addresses with the Trustee pursuant to Section 313(c)(2) of the
Trust Indenture Act, by mailing such notice to such Holders at such addresses as
were so furnished to the Trustee (and the Trustee shall make such information
available to the Issuer for such purpose) and (c) to the Holders of Registered
Securities of each series affected, by mailing such notice to such Holders at
their addresses as they shall appear on the registry books. If the acceptance
of appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 6.11. If the Issuer fails to give such notice within ten
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the Issuer.
SECTION 6.13 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF TRUSTEE. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from
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any merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, PROVIDED, that such corporation
shall be qualified under Section 310(b) of the Trust Indenture Act and eligible
under the provisions of Section 6.10, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any such successor
to the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate of authentication shall have the full force which under
this Indenture or the Securities of such series it is provided that the
certificate of authentication of the Trustee shall have; PROVIDED, that the
right to adopt the certificate of authentication of any predecessor trustee or
to authenticate Securities of any series in the name of any predecessor trustee
shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 6.14 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated.
SECTION 6.15 APPOINTMENT OF AUTHENTICATING AGENT. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or to the Trustee's Certificate of Authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $45,000,000 (determined as provided in Section
6.10 with respect to the Trustee) and subject to supervision or examination by
federal or state authority.
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Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent. Any Authenticating Agent may at any
time, and if it shall cease to be eligible shall, resign by giving written
notice of resignation to the Trustee and to the Issuer.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.15 with respect to
one or more series of Securities, the Trustee shall upon receipt of an Issuer
Order appoint a successor Authenticating Agent and the Issuer shall provide
notice of such appointment to all Holders of Securities of such series in the
manner and to the extent provided in Section 11.4. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
rights, powers, duties and responsibilities of its predecessor hereunder, with
like effect as if originally named as Authenticating Agent. The Issuer agrees
to pay to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 7.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES. Subject to Sections 6.1 and 6.2, the execution of any instrument by
a Securityholder or his agent or proxy may be proved in accordance with such
reasonable rules
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and regulations as may be prescribed by the Trustee or in such manner as shall
be satisfactory to the Trustee. The holding of Registered Securities shall be
proved by the Security register or by a certificate of the registrar thereof.
SECTION 7.3 HOLDERS TO BE TREATED AS OWNERS. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the person in
whose name any Security shall be registered upon the Security register for such
series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest on such Security
and for all other purposes; and neither the Issuer nor the Trustee nor any agent
of the Issuer or the Trustee shall be affected by any notice to the contrary.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Holder of any Unregistered Security and the Holder of any Coupon as the absolute
owner of such Unregistered Security or Coupon (whether or not such Unregistered
Security or Coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes and neither the Issuer,
the Trustee, nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. All such payments so made to any such person, or upon
his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Unregistered Security or Coupon.
SECTION 7.4 SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any request,
demand, authorization, direction, notice, consent, waiver or other action by
Securityholders under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such action only Securities which
the Trustee knows are so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee is not the Issuer or
any other obligor upon the Securities or any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Issuer or any other obligor on the Securities. In case of a dispute as to such
right, the advice of counsel shall be full protection in respect of any decision
made by the Trustee in accordance with such advice. Upon request of the
Trustee, the Issuer shall furnish to the Trustee promptly an Officer's
Certificate listing and identifying all Securities, if any, known by the Issuer
to be owned or held by or for the account of any of the above-described persons;
and, subject to Sections 6.1 and 6.2, the Trustee shall be entitled to accept
such Officer's Certificate as
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conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 RIGHT OF REVOCATION OF ACTION TAKEN. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid, any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon any such Security.
Any action taken by the Holders of the percentage in aggregate principal amount
of the Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively binding upon the
Issuer, the Trustee and the Holders of all the Securities affected by such
action.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS. The Issuer, when authorized by a resolution of its Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer,
or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Issuer pursuant to
Article IX;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the protection of the Holders of Securities or Coupons,
and to make the occurrence, or the occurrence and continuance, of a default
in any such additional covenants, restrictions, conditions or provisions an
Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; PROVIDED, that in
respect
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of any such additional covenant, restriction, condition or provision such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an immediate enforcement upon
such an Event of Default or may limit the remedies available to the Trustee
upon such an Event of Default or may limit the right of the Holders of a
majority in aggregate principal amount of the Securities of such series to
waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture, or to make any other provisions as the Issuer may
deem necessary or desirable, PROVIDED, that no such action shall adversely
affect the interests of the Holders of the Securities or Coupons;
(e) to establish the forms or terms of Securities of any series or of
the Coupons appertaining to such Securities as permitted by Sections 2.1
and 2.3; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to the requirements
of Section 6.12.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 8.2.
SECTION 8.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.
(A) Except as set forth in paragraph (C) below, with the consent
(evidenced as provided in Article VII) of the Holders of not less than a
majority in aggregate principal amount of the Securities at the time Outstanding
of all series of Senior Securities affected by such supplemental indenture
(voting as one class), the Issuer, when authorized by a resolution of its Board
of Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or
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pursuant to an Issuer Order), and the Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as in force and effect at
the date of execution thereof) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series or of the Coupons appertaining to
such Securities.
(B) Except as set forth in paragraph (C) below, with the consent
(evidenced as provided in Article VII) of the Holders of not less than a
majority in aggregate principal amount of the Securities at the time Outstanding
of all series of Subordinated Securities affected by such supplemental indenture
(voting as one class), the Issuer, when authorized by a resolution of its Board
of Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the Trustee may, from
time to time and at any time, enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as in
force and effect at the date of execution thereof) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Holders of the Securities of each such series or of the
Coupons appertaining to such Securities.
(C) No such supplemental indenture shall (i) extend the final
maturity of any Security, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof, or make the principal thereof (including any
amount in respect of original issue discount), or interest thereon payable in
any coin or currency other than that provided in the Securities and Coupons or
in accordance with the terms thereof, or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 5.1 or the amount
thereof provable in bankruptcy pursuant to Section 5.2, or alter the provisions
of Section 11.11 or 11.12 or impair or affect the right of any Securityholder to
institute suit for the payment thereof when due or, if the Securities provide
therefor, any right of repayment at the option of the Securityholder, in each
case without the consent of the Holder of each Security so affected, or (ii)
reduce the aforesaid percentage of Securities of any series, the consent of the
Holders of which is required for any such supplemental indenture, without the
consent of the Holders of each Security so affected.
(D) A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series, or of Coupons
appertaining to such Securities, with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or of the Coupons appertaining to such
Securities.
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Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order)
certified by the secretary or an assistant secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders of the Securities as aforesaid
and other documents, if any, required by Section 7.1, the Trustee shall join
with the Issuer in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall give notice thereof (i) to the Holders of then Outstanding Registered
Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the
Security register, (ii) if any Unregistered Securities of a series affected
thereby are then Outstanding, to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 313(c)(2) of the Trust
Indenture Act, by mailing a notice thereof by first-class mail to such Holders
at such addresses as were so furnished to the Trustee and (iii) if any
Unregistered Securities of a series affected thereby are then Outstanding, to
all Holders thereof, by publication of a notice thereof at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London (and, if required by Section
3.9, at least once in an Authorized Newspaper in Luxembourg), and in each case
such notice shall set forth in general terms the substance of such supplemental
indenture. Any failure of the Issuer to give such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
SECTION 8.3 EFFECT OF SUPPLEMENTAL INDENTURE.Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 8.4 DOCUMENTS TO BE GIVEN TO TRUSTEE.The Trustee, subject to
the provisions of Sections 6.1 and 6.2, may receive an Officer's Certificate and
an
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Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article 8 complies with the applicable provisions of
this Indenture.
SECTION 8.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL
INDENTURES.Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.The
Issuer shall not consolidate with or merge into any other Person or transfer or
lease its properties and assets substantially as an entirety to any Person, and
the Issuer shall not permit any other Person to consolidate with or merge into
the Issuer, unless:
(a) either the Issuer shall be the continuing corporation, or the
successor corporation (if other than the Issuer) formed by such
consolidation or into which the Issuer is merged or to which the properties
and assets of the Issuer substantially as an entirety are transferred or
leased 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, all the
obligations of the Issuer under the Securities and this Indenture; and
(b) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Issuer or a Subsidiary
as a result of such transaction as having been incurred by the Issuer or
such Subsidiary at the time of such transaction, no Event of Default, and
no event which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing.
SECTION 9.2 SUCCESSOR CORPORATION SUBSTITUTED.The successor
corporation formed by such consolidation or into which the Issuer is merged or
to which such transfer or lease is made shall succeed to and be substituted for,
and may exercise every right and power of, the Issuer under this Indenture with
the same effect as if such successor corporation had been named as the Issuer
herein, and thereafter (except in the case of a lease to another Person) the
predecessor corporation shall be relieved of all obligations and covenants under
the
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Indenture and the Securities and, in the event of such conveyance or transfer,
any such predecessor corporation may be dissolved and liquidated.
SECTION 9.3 OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE.The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption, complies with the provisions of this
Article IX.
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 SATISFACTION AND DISCHARGE OF INDENTURE.
(A) If at any time (i) the Issuer shall have paid or caused to be
paid the principal of and interest on all the Securities of any series
Outstanding hereunder and all unmatured Coupons appertaining thereto (other than
Securities of such series and Coupons appertaining thereto which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.9) as and when the same shall have become due and payable, or (ii) the
Issuer shall have delivered to the Trustee for cancellation all Securities of
any series theretofore authenticated and all unmatured Coupons appertaining
thereto (other than any Securities of such series and Coupons appertaining
thereto which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.9) or (iii) in the case of any
series of Securities where the exact amount (including the currency of payment)
of principal of and interest due on which can be determined at the time of
making the deposit referred to in clause (b) below, (a) all the Securities of
such series and all unmatured Coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption, and (b) the Issuer shall have
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust the entire amount in (i) cash (other than moneys repaid by the Trustee
or any paying agent to the Issuer in accordance with Section 10.4), (ii) in the
case of any series of Securities the payments on which may only be made in
Dollars, direct obligations of the United States of America, backed by its full
faith and credit ("U.S. Government Obligations"), maturing as to principal and
interest at such times and in such amounts as will insure the availability of
cash sufficient to pay at such maturity or upon such redemption, as the case may
be, or (iii) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (x) the principal and
interest on all Securities of such series and Coupons appertaining thereto on
each date that such principal or interest is due and payable and (y) any
mandatory sinking fund payments on the dates on which such payments are due and
payable in accordance with the terms of the Indenture and the Securities of such
series; and if, in any such case, the Issuer shall also
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pay or cause to be paid all other sums payable hereunder by the Issuer, then
this Indenture shall cease to be of further effect (except as to (i) rights of
registration of transfer and exchange of Securities of such Series and of
Coupons appertaining thereto pursuant to Section 2.8 and the Issuer's right of
optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed,
lost or stolen Securities or Coupons, (iii) rights of holders of Securities and
Coupons appertaining thereto pursuant to Section 2.8 to receive payments of
principal thereof and interest thereon, upon the original stated due dates
therefor (but not upon acceleration), and remaining rights of the Holders to
receive mandatory sinking fund payments, if any, (iv) any optional redemption
rights of such series of Securities to the extent to be exercised to make such
call for redemption within one year, (v) the rights, obligations, duties and
immunities of the Trustee hereunder, including those under Section 6.6, (vi) the
rights of the Holders of Securities of such series and Coupons appertaining
thereto as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them, and (vii) the obligations of the
Issuer under Section 3.2) and the Trustee, on demand of the Issuer accompanied
by an Officer's Certificate and an Opinion of Counsel and at the cost and
expense of the Issuer, shall execute proper instruments acknowledging such
satisfaction of and discharging this Indenture; PROVIDED, that the rights of
Holders of the Securities and Coupons to receive amounts in respect of principal
of and interest on the Securities and Coupons held by them shall not be delayed
longer than required by then-applicable mandatory rules or policies of any
securities exchange upon which the Securities are listed. The Issuer agrees to
reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities of such series.
(B) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution, Officer's
Certificate or indenture supplemental hereto provided pursuant to Section 2.3.
In addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities the exact amounts (including
the currency of payment) of principal of and interest due on which can be
determined at the time of making the deposit referred to in clause (a) below,
the Issuer shall be deemed to have paid and discharged the entire indebtedness
on all the Securities of such a series and the Coupons appertaining thereto on
the date of the deposit referred to in subparagraph (a) below, and the
provisions of this Indenture with respect to the Securities of such series and
Coupons appertaining thereto shall no longer be in effect (except as to (i)
rights of registration of transfer and exchange of Securities of such series and
of Coupons appertaining thereto pursuant to Section 2.8 and the Issuer's right
of optional redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (iii) rights of Holders of
Securities and Coupons appertaining thereto to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but
not upon acceleration), and remaining rights of the Holders to receive mandatory
sinking fund payments, if any, (iv) any optional redemption rights of such
series of Securities to the extent to be exercised to make such call for
redemption within one year, (v) the rights, obligations, duties and immunities
of the Trustee hereunder, (vi) the rights of the Holders of Securities of such
series and Coupons appertaining thereto as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them and
(vii) the
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obligations of the Issuer under Section 3.2) and the Trustee, at the expense of
the Issuer, shall at the Issuer's request, execute proper instruments
acknowledging the same, if
(a) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as trust
funds in trust, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Securities of such series and Coupons
appertaining thereto (i) cash in an amount, or (ii) in the case of any
series of Securities the payments on which may only be made in Dollars,
U.S. Government Obligations, maturing as to principal and interest at such
times and in such amounts as will insure the availability of cash or (iii)
a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (A) the principal
and interest on all Securities of such series and Coupons appertaining
thereto on each date that such principal or interest is due and payable and
(b) any mandatory sinking fund payments on the dates on which such payments
are due and payable in accordance with the terms of the Indenture and the
Securities of such series;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the Issuer
is a party or by which it is bound;
(c) the Issuer has delivered to the Trustee an opinion of counsel
from a nationally recognized law firm based on the fact that (x) the Issuer
has received from, or there has been published by, the IRS a ruling or (y)
since the date hereof, there has been a change in the applicable United
States federal income tax law, in either case to the effect that, and such
opinion shall confirm that, the Holders of the Securities of such series
and Coupons appertaining thereto will not recognize income, gain or loss
for United States federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to United States federal
income tax on the same amount and in the same manner and at the same times,
as would have been the case if such deposit, defeasance and discharge had
not occurred;
(d) the Issuer has delivered to the Trustee an Opinion of Counsel to
the effect that after the 91st day following the deposit, the trust funds
will not be subject to avoidance as a preferential transfer under Section
547(b) of the United States Bankruptcy Code (except with respect to any
Holder that is an "insider" of the Issuer within the meaning of the United
States Bankruptcy Code); and
(e) the Issuer has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent
provided for relating to the defeasance contemplated by this provision have
been complied with.
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(C) The Issuer shall be released from its obligations under Sections
3.6, 3.7 and 9.1 and unless otherwise provided for in the Board Resolution,
Officer's Certificate or Indenture supplemental hereto establishing such series
of Securities, from all covenants and other obligations referred to in Section
2.3(19) or 2.3(21) with respect to such series of Securities, and any Coupons
appertaining thereto, outstanding on and after the date the conditions set forth
below are satisfied (hereinafter, "covenant defeasance"). For this purpose,
such covenant defeasance means that, with respect to the Outstanding Securities
of any series, the Issuer may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in such Section, whether
directly or indirectly by reason of any reference elsewhere herein to such
Section or by reason of any reference in such Section to any other provision
herein or in any other document and such omission to comply shall not constitute
an Event of Default under Section 5.1, but the remainder of this Indenture and
such Securities and Coupons shall be unaffected thereby. The following shall be
the conditions to application of this subsection C of this Section 10.1:
(a) The Issuer has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the holders of the Securities of such series and
coupons appertaining thereto, (i) cash in an amount, or (ii) in the case of
any series of Securities the payments on which may only be made in Dollars,
U.S. Government Obligations maturing as to principal and interest at such
times and in such amounts as will insure the availability of cash or (iii)
a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (A) the principal
and interest on all Securities of such series and Coupons appertaining
thereof and (B) any mandatory sinking fund payments on the day on which
such payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series;
(b) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit;
(c) Such covenant defeasance shall not cause the Trustee to have a
conflicting interest as defined in Section 6.9 and for purposes of the
Trust Indenture Act with respect to any securities of the Issuer;
(d) Such covenant defeasance shall not result in a breach or
violation of, or constitute a default under any agreement or instrument to
which the Issuer is a party or by which it is bound;
(e) Such covenant defeasance shall not cause any Securities then
listed on any registered national securities exchange under the Exchange
Act to be delisted;
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(f) The Issuer shall have delivered to the Trustee an Officer's
Certificate and an opinion of counsel from a nationally recognized law firm
to the effect that the Holders of the Securities of such series and Coupons
appertaining thereto will not recognize income, gain or loss for United
States federal income tax purposes as a result of such covenant defeasance
and will be subject to United States 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;
(g) The Issuer has delivered to the Trustee an Opinion of Counsel to
the effect that after the 91st day following the deposit, the trust funds
will not be subject to avoidance as a preferential transfer under Section
547(b) of the United States Bankruptcy Code (except with respect to any
Holder that is an "insider" of the Issuer within the meaning of the United
States Bankruptcy Code); and
(h) The Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the covenant defeasance contemplated by
this provision have been complied with.
SECTION 10.2 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF
SECURITIES. Subject to Section 10.4, all moneys deposited with the Trustee (or
other trustee) pursuant to Section 10.1 shall be held in trust and applied by it
to the payment, either directly or through any paying agent (including the
Issuer acting as its own paying agent), to the Holders of the particular
Securities of such series and of Coupons appertaining thereto for the payment or
redemption of which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest; but such money
need not be segregated from other funds except to the extent required by law.
SECTION 10.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 10.4 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT
UNCLAIMED FOR TWO YEARS. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest on any Security
of any series and of any Coupons attached thereto and not applied but
remaining unclaimed for two years after the date upon which such principal or
interest shall have become due and payable, shall, upon the written request
of the Issuer and unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be repaid to the
Issuer by the Trustee for such series or such paying agent, and the Holder of
the Securities of such series and of any Coupons appertaining thereto shall,
unless otherwise required by mandatory provisions
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of applicable escheat or abandoned or unclaimed property laws, thereafter
look only to the Issuer for any payment which such Holder may be entitled to
collect, and all liability of the Trustee or any paying agent with respect to
such moneys shall thereupon cease; PROVIDED, that the Trustee or such paying
agent, before being required to make any such repayment with respect to
moneys deposited with it for any payment (a) in respect of Registered
Securities of any series, shall at the expense of the Issuer, mail by
first-class mail to Holders of such Securities at their addresses as they
shall appear on the Security register, and (b) in respect of Unregistered
Securities of any series, shall at the expense of the Issuer cause to the
published once, in an Authorized Newspaper in the Borough of Manhattan,
The City of New York and once in an Authorized Newspaper in London (and, if
required by Section 3.9, once in an Authorized Newspaper in Luxembourg), notice,
that such moneys remain and that, after a date specified therein, which shall
not be less than thirty days from the date of such mailing or publication, any
unclaimed balance of such money then remaining will be repaid to the Issuer.
SECTION 10.5 INDEMNITY FOR U.S. GOVERNMENT OF OBLIGATIONS. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to
Section 10.1 or the principal or interest received in respect of such
obligations.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS OF
ISSUER EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future shareholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities and the Coupons, if any,
appertaining thereto by the Holders thereof and as part of the consideration for
the issue of the Securities and the Coupons appertaining thereto.
SECTION 11.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES
AND HOLDERS OF SECURITIES AND COUPONS. Nothing in this Indenture, in the
Securities or in the Coupons appertaining thereto, expressed or implied, shall
give or be construed to give to any person, firm or corporation, other than the
parties thereto and their successors and the Holders of the Securities or
Coupons, if any, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities or Coupons, if any.
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SECTION 11.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF
SECURITIES AND COUPONS. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities or Coupons, if any, to or on the Issuer may be given
or served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of the
Issuer is filed by the Issuer with the Trustee) to UnionBanCal Corporation, 400
California Street, San Francisco, California 94104, Attention: Secretary. Any
notice, direction, request or demand by the Issuer or any Holder of Securities
or Coupons, if any, to or upon the Trustee shall be deemed to have been
sufficiently given or served by being deposited postage prepaid, first-class
mail (except as otherwise specifically provided herein) addressed (until another
address of the Trustee is filed by the Trustee with the Issuer) to The First
National Bank of Chicago, One First National Plaza, Suite 0126, Chicago, IL
60670-0126, Attention: Corporate Trust Administration.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class mail, postage prepaid,
to each Holder entitled thereto, at his last address as it appears in the
Security register.
Where this Indenture provides for notice to holders of Unregistered
Securities, such notice shall be sufficiently given (unless otherwise expressly
provided herein) by giving notice to such Holders (a) by publication of such
notice at least once in an Authorized Newspaper in the Borough of Manhattan, The
City of New York, and at least once in an Authorized Newspaper in London (and,
if required by Section 3.9, once in an Authorized Newspaper in Luxembourg), and
(ii) by mailing such notice to the Holders of Unregistered Securities who have
filed their names and addresses with the Trustee pursuant to Section 313(c)(2)
of the Trust Indenture Act at such addresses as were so furnished to the
Trustee.
In any case where notice to such Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to the given
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pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be reasonably satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice.
SECTION 11.5 OFFICER'S CERTIFICATES AND OPINIONS OF COUNSEL;
STATEMENTS TO BE CONTAINED THEREIN. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officer's Certificate stating that
all conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters or information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion of or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
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Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 11.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. If the
date of maturity of interest on or principal of the Securities of any series or
any Coupons appertaining thereto or the date fixed for redemption or repayment
of any such Security or Coupon shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
SECTION 11.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with duties imposed by, or with another provision (an
"incorporated provision") included in this Indenture by operation of Sections
310 to 318, inclusive, of the Trust Indenture Act, such imposed duties or
incorporated provision shall control.
SECTION 11.8 NEW YORK LAW TO GOVERN. THIS INDENTURE AND EACH SECURITY
AND COUPON SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW
YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SUCH STATE INCLUDING, WITHOUT LIMITATION, SECTION 5-140 OF THE NEW YORK GENERAL
OBLIGATIONS LAW.
SECTION 11.9 COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10 EFFECT OF HEADINGS. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
SECTION 11.11 SECURITIES IN A COMPOSITE CURRENCY, CURRENCY UNIT,
FOREIGN CURRENCY OR IN ECU. Unless otherwise specified in an Officer's
Certificate delivered pursuant to Section 2.3 of this Indenture with respect to
a particular series of Securities, whenever for purposes of this Indenture any
action may be taken by the Holders of a specified percentage in aggregate
principal amount of Securities of all series or all series affected by a
particular action at the time Outstanding and, at such time, there are
Outstanding Securities of any series which are denominated in a coin, currency
or currencies other than Dollars (including, but not limited to, any composite
currency, currency units, Foreign Currency or ECUs), then the principal amount
of Securities of such series which shall be deemed to be Outstanding for the
purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate. For purposes of this
Section 11.11,
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Market Exchange Rate shall mean the noon Dollar buying rate in The City of New
York for cable transfers of such currency or currencies as published by the
Federal Reserve Bank of New York as of the most recent available date; PROVIDED
THAT, in the case of ECUs, Market Exchange Rate shall mean the rate of exchange
determined by the Commission of the European Communities (or any successor
thereto) as published in the Official Journal of the European Communities (such
publication or any successor publication, the "Journal") as of the most recent
available date. If such Market Exchange Rate is not so available for any reason
with respect to such currency, the Trustee shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of New
York or, in the case of ECUs, the rate of exchange as published in the Journal,
as of the most recent available date, or quotations or, in the case of ECUs,
rates of exchange from one or more major banks in The City of New York or in the
country of issue of the currency in question, which for purposes of the ECU
shall be Brussels, Belgium, or such other quotations or, in the case of ECU,
rates of exchange as the Trustee shall deem appropriate. The provisions of this
paragraph shall apply in determining the equivalent principal amount in respect
of Securities of a series denominated in a currency other than Dollars in
connection with any action taken by Holders of Securities pursuant to the terms
of this Indenture.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Holders.
SECTION 11.12 JUDGMENT CURRENCY. The Issuer agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest on the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such day is not a New York
Banking Day, then, to the extent permitted by applicable law, the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding the
day on which final unappealable judgment is entered and (b) its obligations
under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full amount of
the Required Currency expressed to be payable in respect of such payments, (ii)
shall be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking
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Day" means any day except a Saturday, Sunday or a legal holiday in The City of
New York or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to close.
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
SECTION 12.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Issuer shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption to such Holders
of Securities of such series at their last addresses as they shall appear upon
the registry books. Notice of redemption to the Holders of Unregistered
Securities to be redeemed as a whole or in part, who have filed their names and
addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture
Act shall be given by mailing notice of such redemption, by first class mail,
postage prepaid, at least 30 days and not more than 60 prior to the date fixed
for redemption, to such Holders at such addresses as were so furnished to the
Trustee (and, in the case of any such notice given by the Issuer, the Trustee
shall make such information available to the Issuer for such purpose). Notice
of redemption to all other Holders of Unregistered Securities shall be published
in an Authorized Newspaper in the Borough of Manhattan, The City of New York and
in an Authorized Newspaper in London (and, if required by Section 3.9, in an
Authorized Newspaper in Luxembourg), in each case, once in each of three
successive calendar weeks, the first publication to be not less than 30 nor more
than 60 days prior to the date fixed for redemption. Any notice which is mailed
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice. Failure to give notice by
mail, or any defect in the notice to the Holder of any Security of a series
designated for redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of such Security of such series.
The notice of redemption to each such Registered Holder shall specify
the principal amount of each Security of such series held by such Registered
Holder to be redeemed, the date fixed for redemption, the redemption price, the
place or places of payment, that payment will be made upon presentation and
surrender of such Securities and, in the case of Securities with Coupons
attached thereto, of all Coupons appertaining thereto maturing after the date
fixed for redemption, that such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, that interest accrued to
the date fixed for redemption will be paid as specified in such notice and that
on and after said date interest thereon or on the portions thereof to be
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redeemed will cease to accrue. In case any Security of a series is to be
redeemed in part only, the notice of redemption to Registered Holders of
Securities of the series shall state the portion of the principal amount thereof
to be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee or
with one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.4) an
amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate redemption price,
together with accrued interest to the date fixed for redemption. The Issuer
will deliver to the Trustee at least 70 days prior to the date fixed for
redemption, or such shorter period as shall be acceptable to the Trustee, an
Officer's Certificate stating the aggregate principal amount of Securities to be
redeemed. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officer's Certificate stating that such restriction has been
complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deemed appropriate and fair, in
its sole discretion, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Issuer in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities of any series
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 12.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured Coupons, if any, appertaining thereto shall be void,
and, except as provided in Sections 6.5 and 10.4, such Securities shall cease
from and after the date fixed for redemption to be
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entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, together with all Coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; PROVIDED, that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with Coupons attached thereto, to the Holders of the
Coupons for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holder of such Registered Securities registered as such on
the relevant record date, subject to the terms and provisions of Section 2.3 and
2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after the
date fixed for redemption, the surrender of such missing Coupon or Coupons may
be waived by the Issuer and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 12.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR
SELECTION FOR REDEMPTION. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officer's Certificate delivered to the Trustee at least 40 days
prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by, either (a)
the Issuer or (b) an entity specifically identified in such written statement as
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer.
SECTION 12.5 MANDATORY AND OPTIONAL SINKING FUNDS. The minimum
amount of any sinking fund payment provided for by the terms of the Securities
of any series is herein referred to as a "mandatory sinking fund payment," and
any payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein
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referred to as an "optional sinking fund payment." The date on which a sinking
fund payment is to be made is herein referred to as the "sinking fund payment
date."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
On or before the 60th day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee an Officer's
Certificate (which need not contain the statements required by Section 11.5) (a)
specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of Securities of such
series and the basis for such credit, (b) stating that none of the Securities of
such series has theretofore been so credited, (c) stating that no defaults in
the payment of interest or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking fund payment which the Issuer intends to pay
on or before the next succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such Officer's Certificate (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officer's
Certificate shall be irrevocable and upon its receipt by the Trustee, the Issuer
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such 60th day, to deliver
such Officer's Certificate and Securities specified in this paragraph, if any,
shall not constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Issuer will make no optional sinking
fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or the equivalent thereof in
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any composite currency, currency units, Foreign Currency or ECU) or a lesser sum
in Dollars (or the equivalent thereof in any composite currency, currency units,
Foreign Currency or ECU) if the Issuer shall so request with respect to the
Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If such amount shall be $50,000 (or the
equivalent thereof in any composite currency, currency units, Foreign Currency
or ECU) or less and the Issuer makes no such request then it shall be carried
over until a sum in excess of $50,000 (or the equivalent thereof in any
composite currency, currency units, Foreign Currency or ECU) is available. The
Trustee shall select, in the manner provided in Section 12.2, for redemption on
such sinking fund payment date a sufficient principal amount of Securities of
such series to absorb said cash, as nearly as may be, and shall (if requested in
writing by the Issuer) inform the Issuer of the serial numbers of the Securities
of such series (or portions thereof) so selected. Securities shall be excluded
from eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officer's Certificate delivered to the
Trustee at least 60 days prior to the sinking fund payment date as being owned
of record and beneficially by, and not pledged or hypothecated by, either (a)
the Issuer or (b) an entity specifically identified in such Officer's
Certificate as directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer. The Trustee, in the name and
at the expense of the Issuer (or the Issuer, if it shall so request the Trustee
in writing) shall cause notice of redemption of the Securities of such series to
be given in substantially the manner provided in Section 12.2 (and with the
effect provided in Section 12.3) for the redemption of Securities of such series
in part at the option of the Issuer. The amount of any sinking fund payments
not so applied or allocated to the redemption of Securities of such series shall
be added to the next cash sinking fund payment for such series and, together
with such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of
the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash or shall otherwise provide for the payment of all interest
accrued to the date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking
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fund, shall, during the continuance of such default or Event of Default be
deemed to have been collected under Article Five and held for the payment of all
such Securities. In case such Event of Default shall have been waived as
provided in Section 5.10 or the default cured on or before the sixtieth day
preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed and attested as of the date first written above.
UNIONBANCAL CORPORATION
By: /s/ David A. Anderson
--------------------------------------------
Name: David A. Anderson
Title: Senior Vice President and Controller
Attest:
By: /s/ Morris Hirsch
-------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ Sandra L. Caruba
---------------------------------------------
Name: Sandra L. Caruba
Title: Vice President
Attest:
By: /s/ Diane Swanson
-------------------------
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EXHIBIT 4.2
UNIONBANCAL CORPORATION
Officer's Certificate
----------------------
----------------------
UnionBanCal Finance Trust I, a Delaware statutory business trust
("Finance Trust I"), has offered to the public $350,000,000 aggregate
liquidation amount of its 7 3/8% Capital Securities (the "Capital Securities"),
representing undivided beneficial interest in the assets of Finance Trust I, and
proposes to invest the proceeds from such offering, together with the proceeds
of the issuance and sale by Finance Trust I to UnionBanCal Corporation, a
California corporation ("UNBC") of $10,824,750 aggregate liquidation amount of
its Common Securities (the "Common Securities" and, together with the Capital
Securities, the "Trust Securities"), in $360,824,750 aggregate principal amount
of Junior Subordinated Debentures referred to below. The Capital Securities
will be issued pursuant to the terms of an Amended and Restated Declaration of
Trust of Finance Trust I, dated as of February 19, 1999 (the "Declaration"),
among the Regular Trustees (as defined therein), the Delaware Trustee (as
defined therein), the Property Trustee (as defined therein), UNBC and the
holders from time to time of the Trust Securities.
Capitalized terms used but not otherwise defined herein shall have the
meanings specified in the Indenture dated as of February 19, 1999 (the
"Indenture"), by and between UNBC, as issuer, and The First National Bank of
Chicago, a national banking association, as trustee (the "Indenture Trustee").
The undersigned, David A. Anderson, Senior Vice President and Controller
of UNBC, hereby certifies as of February 19, 1999, pursuant to Sections 2.1 and
2.3 of the Indenture as follows:
A. He has read Sections 2.1 and 2.3 of the Indenture, read such
other Sections of the Indenture and other documents as he deemed necessary and
made such other inquiries as he deemed necessary to make the certifications of
paragraph B and C hereof.
B. All conditions precedent provided for in the Indenture relating
to the issuance of the 7 3/8% Junior Subordinated Deferrable Interest Debentures
due 2029 have been complied with.
C. Pursuant to the resolutions adopted by the Board of Directors of
UNBC (the "Board of Directors") dated November 18, 1998 and January 27, 1999 and
by the Pricing Committee of the Board of Directors dated February 11, 1999, the
following terms of UNBC's 7 3/8% Junior Subordinated Deferrable Interest
Debentures due 2029, have been duly approved and authorized by UNBC in
accordance with the provisions of the Indenture:
<PAGE>
1. DESIGNATION. The designation of the securities is
"7 3/8% Junior Subordinated Deferrable Interest Debentures due 2029" (the
"Junior Subordinated Debentures").
2. AGGREGATE PRINCIPAL AMOUNT. The Junior Subordinated
Debentures shall be limited in aggregate principal amount to $360,824,750
(except for Junior Subordinated Debentures authenticated and delivered upon
registration of, transfer of, or in exchange for, or in lieu of, other Junior
Subordinated Debentures pursuant to Sections 2.8, 2.9, 2.11, 8.5 or 12.3 of the
Indenture).
3. REGISTERED SECURITIES IN BOOK-ENTRY FORM. Except as
provided in paragraph 14 below, the Junior Subordinated Debentures will be
issued in fully registered certificated form without interest coupons. Pursuant
to paragraph 14 below, the Junior Subordinated Debentures may be issued in
book-entry form ("Book-Entry Debentures") and represented by one or more global
Junior Subordinated Debentures (the "Global Debentures") in fully registered
form, without coupons. The initial Depositary with respect to the Global
Debentures will be The Depository Trust Company, as Depositary for the accounts
of its participants. So long as the Depositary for a Global Debenture, or its
nominee, is the registered owner of the Global Debenture, the Depositary or its
nominee, as the case may be, will be considered the sole owner or holder of the
Junior Subordinated Debentures in book-entry form represented by such Global
Debentures for all purposes under the Indenture. Book-Entry Debentures will not
be exchangeable for Junior Subordinated Debentures in definitive form
("Definitive Debentures") except that, if the Depositary with respect to any
Global Debenture or Debentures is at any time unwilling or unable to continue as
Depositary and a successor Depositary is not appointed by the Company within 90
days, the Company will issue Definitive Debentures in exchange for the
Book-Entry Debentures represented by any such Global Debenture or Debentures.
In addition, the Company may at any time and in its sole discretion determine
not to have a Global Debenture or Debentures, and, in such event, will issue
Definitive Debentures in exchange for the Book-Entry Debentures represented by
such Global Debenture or Debentures in accordance with the provisions of Section
2.8 of the Indenture.
4. STATED MATURITY. The date on which the principal of the
Junior Subordinated Debentures is payable is May 15, 2029.
5. RATE OF INTEREST: INTEREST PAYMENT DATES: REGULAR
RECORD DATES. Each Junior Subordinated Debenture will bear interest from
February 19, 1999 or from the most recent Interest Payment Date (as defined
below) to which interest has been paid or duly provided for, quarterly in
arrears on February 15, May 15, August 15 and November 15 of each year (each, an
"Interest Payment Date") (subject to extension as provided below), commencing on
May 15, 1999 at the rate of 7 3/8% per annum until the principal thereof is paid
or made available for payment, and (to the extent that the payment of such
interest shall be legally enforceable) at the rate of 7 3/8% per annum,
compounded quarterly, on any overdue principal and on any overdue installment of
interest. Interest payments on the Junior Subordinated Debentures will include
interest accrued to but excluding each Interest Payment Date. Interest so
payable shall be paid to
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the person in whose name such Junior Subordinated Debenture is registered at the
close of business on the Business Day next preceding such Interest Payment Date.
In the event the Junior Subordinated Debentures do not remain in book-entry only
form, the record dates will be 15 calendar days (whether or not a Business Day)
prior to the Interest Payment Date.
The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months and, for any period shorter
than a quarter, on the basis of the actual number of days elapsed per 30-day
month. In the event that any date on which interest is payable on the Junior
Subordinated Debentures is not a Business Day, then payment of interest payable
on such date will be made on the next succeeding Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
6. ADDITIONAL INTEREST. If at any time while the Property
Trustee is the holder of the Junior Subordinated Debentures, Finance Trust I
shall be required to pay any taxes, duties, assessments or governmental charges
of whatever nature (other than withholding taxes) imposed by the United States
or any other taxing authority, then in any such case, UNBC will pay as
additional interest on the Junior Subordinated Debentures such additional
amounts ("Additional Interest") as shall be required so that the net amounts
received and retained by Finance Trust I after paying any such taxes, duties,
assessments or other governmental charges will be not less than the amounts
Finance Trust I would have received had no such taxes, duties, assessment or
governmental charges been imposed.
7. EXTENSION OF INTEREST PAYMENT PERIOD.
a. OPTION TO EXTEND. So long as UNBC is not in
default in the payment of interest on the Junior Subordinated Debentures, UNBC
shall have the right, at any time, and from time to time, during the term of the
Junior Subordinated Debentures, to defer payments of interest by extending the
interest payment period of such Junior Subordinated Debentures for a period not
exceeding 20 consecutive quarters (the "Extension Period"); PROVIDED that no
Extension Period may extend beyond the maturity date of the Junior Subordinated
Debentures. At the end of each such period UNBC shall pay all interest then
accrued and unpaid (together with interest thereon at the rate of 7 3/8% per
annum compounded quarterly to the extent permitted by applicable law
("Compounded Interest") plus any Additional Interest).
Prior to the termination of any Extension Period, UNBC may
further defer payments of interest by extending the interest payment period;
PROVIDED that the Extension Period, including all such previous and further
extensions, may not exceed 20 consecutive quarters or extend beyond the maturity
date of the Junior Subordinated Debentures. Upon the termination of any
Extension Period and the payment of all amounts then due, UNBC may commence a
new Extension Period, subject to the above requirements.
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b. NOTICE OF EXTENSION. If the Property Trustee is
the sole holder of the Junior Subordinated Debentures, UNBC shall give the
Regular Trustees and the Property Trustee notice of its selection of an
Extension Period one Business Day prior to the earlier of (i) the next date
distributions on the Capital Securities are payable or (ii) the date the Regular
Trustees are required to give notice to the New York Stock Exchange (or other
applicable self-regulatory organization) or to the holders of record of the
Capital Securities. The Regular Trustees shall give notice of UNBC's selection
of such Extension Period to the holders of the Capital Securities.
If the Property Trustee is not the sole holder of the Junior
Subordinated Debentures, UNBC shall give the holders of the Junior Subordinated
Debentures notice of its selection of an Extension Period ten Business Days
prior to the earlier of (i) the next interest payment date or (ii) the date upon
which UNBC is required to give notice to the New York Stock Exchange (or other
applicable self-regulatory organization) or to holders of the Junior
Subordinated Debentures of the record or payment date of such related interest
payment.
The quarter in which such notice is given pursuant to this
section shall be counted as one of the 20 quarters permitted in the maximum
Extension Period permitted under the first paragraph of this section.
8. LIMITATION OF TRANSACTIONS. If Junior Subordinated
Debentures are issued to Finance Trust I or a trustee of Finance Trust I and (i)
there shall have occurred any event that would constitute an Event of Default or
(ii) UNBC shall be in default with respect to its payment or other obligations
under the Guarantee Agreement relating to the Capital Securities, dated as of
February 19, 1999, between UNBC and The First National Bank of Chicago, as
guarantee trustee, dated as of the date hereof (the "Guarantee") or (iii) UNBC
shall have given notice of its election to defer payments of interest on the
Junior Subordinated Debentures by extending the interest payment period as
provided in paragraph 7 above, then:
a. RESTRICTIONS ON DISTRIBUTIONS. UNBC may not
declare or pay dividends on, make any distribution with respect to, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
capital stock; and
b. RESTRICTIONS ON PAYMENTS. UNBC may not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities issued by UNBC that rank PARI PASSU with or junior to
the Junior Subordinated Debentures or make any guarantee payments with respect
to the foregoing;
PROVIDED, HOWEVER, that the foregoing restrictions in a. and b. above do not
apply to:
i. repurchases, redemptions or other
acquisitions of shares of capital stock of UNBC in connection with (A)
any employment contract, benefit plan or other similar arrangement with
or for the benefit of any one or more employees, officers,
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directors or consultants, (B) a dividend reinvestment or shareholder
stock purchase plan or (C) the issuance of capital stock of UNBC (or
securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to such
Extension Period;
ii. an exchange, redemption or conversion of
any class or series of UNBC's capital stock (or any capital stock of a
subsidiary of UNBC) for any class or series of UNBC's capital stock or
of any class or series of UNBC's indebtedness for any class or series of
UNBC's capital stock;
iii. the purchase of fractional interests in
shares of UNBC's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged;
iv. any declaration of a dividend in
connection with any shareholder's rights plan, or the issuance of
rights, stock or other property under any shareholder's rights plan, or
the redemption or repurchase of rights pursuant thereto;
v. any dividend in the form of stock,
warrants, options or other rights where the dividend stock or the stock
issuable upon exercise of such warrants, options or other rights is the
same stock as that on which the dividend is being paid or ranks PARI
PASSU with or junior to such stock; or
vi. payments by UNBC under the Guarantee, or
under any similar guarantee by UNBC with respect to any trust common or
trust preferred securities of its subsidiaries.
9. PLACE OF PAYMENT. Principal and interest on the Junior
Subordinated Debentures will be payable, the transfer of such Junior
Subordinated Debentures will be registrable and such Junior Subordinated
Debentures will be exchangeable for Junior Subordinated Debentures bearing
identical terms and provisions at the office or agency of UNBC maintained for
that purpose in the Borough of Manhattan, The City and State of New York;
PROVIDED, HOWEVER, that, at the option of UNBC, payments of interest may be made
by check mailed to the registered holder at such address as shall appear in the
Security Register and that the payment of principal with respect to any Junior
Subordinated Debenture will only be made upon surrender of such Junior
Subordinated Debenture to the Indenture Trustee. Notwithstanding the foregoing,
so long as the owner and record holder of this Junior Subordinated Debenture is
Finance Trust I, the payment of the principal of and interest (including
Compounded Interest, if any) on this Junior Subordinated Debenture will be made
at such place and to such account of Finance Trust I as may be designated by the
Property Trustee.
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10. REDEMPTION. Subject to receipt of prior approval by the
Board of Governors of the Federal Reserve System, if such approval is then
required under applicable capital guidelines or policies;
a. OPTIONAL. UNBC shall have the right to redeem the
Junior Subordinated Debentures on or after February 19, 2004 in whole at any
time or in part from time to time at 100% of the principal amount per Junior
Subordinated Debenture to be redeemed, plus accrued and unpaid interest thereon,
including any Compounded Interest and any Additional Interest, if any, to the
date of redemption (the "Redemption Date"), such amount, the "Redemption Price."
b. SPECIAL EVENT. at any time before February 19,
2004, UNBC shall have the right to redeem the Junior Subordinated Debentures in
whole (but not in part) at any time within 90 days following the occurrence and
continuation of a Tax Event (as defined below), an Investment Company Event (as
defined below) or a Regulatory Capital Event (as defined below), at the
Redemption Price.
i. "Tax Event" means that the Regular
Trustees (or, if Finance Trust I has been dissolved at such time, an
appropriate representative of the holders of the Junior Subordinated
Debentures) shall have received an opinion of nationally recognized
independent tax counsel experienced in such matters to the effect that,
as a result of:
(A) any amendment to, clarification of,
or change (including any announced prospective change) in the laws (or
any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting taxation;
(B) any judicial decision, official
administrative pronouncement, ruling, regulatory procedure, notice or
announcement, including any notice or announcement of intent to adopt
such procedures or regulations (an "Administrative Action"); or
(C) any amendment to, clarification of,
or change in the official position or the interpretation of such
Administrative Action or judicial decision that differs from the
theretofore generally accepted position, in each case, by any
legislative body, court, governmental authority or regulatory body,
irrespective of the manner in which such amendment, clarification,
change or Administrative Action is made known, which amendment,
clarification, change or Administrative Action is effective or such
pronouncement or decision is announced in each case, on or after
February 11, 1999, there is more than an insubstantial risk that (1)
Finance Trust I is, or will be within 90 days of the date of the opinion
of such counsel, subject to United States federal income tax with
respect to income accrued or received on the Junior Subordinated
Debentures, (2) Finance Trust I is, or will be within 90 days of the
date of the opinion of
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such counsel, subject to more than a DE MINIMIS amount of taxes (other
than withholdings taxes), duties or other governmental charges or (3)
interest paid in cash by UNBC to Finance Trust I on the Junior
Subordinated Debentures is not, or within 90 days of the date of the
opinion of such counsel will not be, deductible, in whole or in part, by
UNBC for United States federal income tax purposes.
Notwithstanding the foregoing, a Tax Event shall not
include any change in tax law that requires UNBC to defer taking a
deduction for any original issue discount ("OID") that accrues with
respect to the Junior Subordinated Debentures until the interest payment
related to such OID is paid by UNBC in cash; PROVIDED THAT such change
in tax law does not create more than an insubstantial risk that UNBC
will be prevented from taking a deduction for OID accruing with respect
to the Junior Subordinated Debentures at a date that is no later than
the date the interest payment related to such OID is actually paid by
UNBC in cash. If an event described in clause (A) or (B) of the
definition of "Tax Event" above has occurred and is continuing and
Finance Trust I is the holder of all the Junior Subordinated Debentures,
UNBC will pay Additional Interest, if any, on the Junior Subordinated
Debentures.
ii. "Investment Company Event" means that the
Regular Trustees shall have received an opinion of nationally recognized
independent counsel experienced in such matters to the effect that, as a
result of the occurrence of a change (including any announced
prospective change) in law or regulation or a written change (including
any announced prospective change) in interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority on or after the date of this prospectus supplement,
there is more than an insubstantial risk that Finance Trust I is or will
be considered an "investment company" that is required to be registered
under the Investment Company Act of 1940.
iii. "Regulatory Capital Event" means that UNBC
shall have received an opinion of nationally recognized independent
counsel experienced in such matters that, as a result of (A) any
amendment to, clarification of or change in applicable laws or
regulations or official interpretations thereof or policies with respect
thereto or (B) any official administrative pronouncement or judicial
decision interpreting or applying such laws or regulations, which
amendment, clarification, change, pronouncement or decision is announced
or is effective after the date of this prospectus supplement, there is
more than an insubstantial risk that the Capital Securities will no
longer constitute Tier 1 capital of UNBC for purposes of the capital
adequacy guidelines or policies of the Board of Governors of the Federal
Reserve System or its successor as UNBC's primary federal banking
regulator.
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c. ADDITIONAL PROVISIONS.
i. Notice of any redemption will be mailed at
least 30 but not more than 60 days before the redemption date to each
Holder of Junior Subordinated Debentures to be redeemed.
ii. Unless UNBC defaults in payment of the
Redemption Price, on and after the Redemption Date, interest will cease
to accrue on the Junior Subordinated Debentures or portions thereof
called for redemption.
iii. If less than all of the Junior
Subordinated Debentures are to be redeemed, the Junior Subordinated
Debentures (or portions thereof) to be redeemed shall be selected by the
Indenture Trustee by such method as the Indenture Trustee shall deem
fair and appropriate, provided that if, at the time of redemption, the
Junior Subordinated Debentures are registered as a Global Debenture, the
Depositary shall determine the principal amount of such Junior
Subordinated Debentures held by each holder to be redeemed in accordance
with its procedures.
iv. If a partial redemption of the Capital
Securities resulting from a partial redemption of the Junior
Subordinated Debentures would result in the delisting of the Capital
Securities, UNBC may only redeem the Junior Subordinated Debentures in
whole.
v. UNBC may not redeem fewer than all of the
Junior Subordinated Debentures unless all accrued and unpaid interest
has been paid on all Junior Subordinated Debentures for all quarterly
interest payment periods terminating on or prior to the Redemption Date.
11. ACCELERATION OF MATURITY DATE.
a. ACCELERATION. If a Tax Event described in clause
(C) of the definition of "Tax Event" occurs, UNBC will have the right, prior to
a dissolution of Finance Trust I, to accelerate the stated maturity of the
Junior Subordinated Debentures to the minimum extent required so that interest
on the Junior Subordinated Debentures will be deductible for United States
federal income tax purposes, but in no event may the resulting maturity of the
Junior Subordinated Debentures be less than 15 years from the date of original
issuance.
b. OPINION OF COUNSEL. The stated maturity may be
accelerated only if UNBC shall have received an opinion of nationally recognized
independent counsel experienced in such matters to the effect that:
i. following such acceleration, interest paid
on the Junior Subordinated Debentures will be deductible for Untied
States federal income tax purposes;
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ii. the holders of Capital Securities will not
recognize income, gain or loss for United States federal income tax
purposes as a result of such acceleration, and will be subject to United
States federal income tax in the same amount in the manner and the at
the same times as would have been the case of such acceleration had not
occurred; and
iii. such acceleration will not cause Finance
Trust I to be classified as other than a grantor trust for United States
federal income tax purposes.
12. MANDATORY REDEMPTION. The Junior Subordinated Debentures
will contain no provision for mandatory redemption, a sinking fund or any
analogous provisions.
13. SUBORDINATION. Junior Subordinated Debentures shall be
subordinated and junior in right of payment to all Senior Indebtedness (as
defined below) of UNBC. UNBC may not make payments of principal (including
redemption payments) or interest on the Junior Subordinated Debentures (i) if
any Senior Indebtedness of UNBC is not paid when due and if any applicable grace
period with respect to such default has ended and such default has not been
cured or waived or ceased to exist or (ii) if the maturity of any Senior
Indebtedness of UNBC has been accelerated because of a default and such
acceleration has not been rescinded.
Upon any distribution of assets of UNBC to creditors upon any
dissolution, winding-up, liquidation or reorganization, whether voluntary or
involuntary, or in bankruptcy, insolvency, receivership or other proceedings,
all principal, premium, if any, and interest due or to become due on all Senior
Indebtedness of UNBC must be paid in full before the holders of Junior
Subordinated Debentures are entitled to receive or retain any payment. In such
event, any payment or distribution on the Junior Subordinated Debentures that
would otherwise be payable in respect of the Junior Subordinated Debentures (but
for the subordination provision) shall be paid or delivered directly to the
holders of Senior Indebtedness in accordance with the priorities then existing
among such holders until all Senior Indebtedness shall have been paid in full.
If any payment or distribution on account of the Junior
Subordinated Debentures (other than certain payments in property) is received
by the Indenture Trustee or any holder of any Junior Subordinated Debentures in
contravention of any of the terms hereof and before all Senior Indebtedness
shall have been paid in full, such payment or distribution shall be received in
trust for the benefit of, and shall be paid over or delivered and transferred
to, the holders of the Senior Indebtedness at the time outstanding in accordance
with the priorities then existing among such holders and creditors for
application to the payment of all Senior Indebtedness then outstanding. The
rights of the holders of the Junior Subordinated Debentures will be subrogated
to the rights of the holders of Senior Indebtedness to the extent of any payment
made by UNBC to such holders of Senior Indebtedness that otherwise would have
been made to the holders of the Junior Subordinated Debentures but for the
subordination provisions.
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"SENIOR INDEBTEDNESS" means, with respect to UNBC, (i) the
principal of (and premium, if any) and interest in respect of (A) indebtedness
of UNBC for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by UNBC, (ii) all capital
lease obligations of UNBC, (iii) all obligations of UNBC issued or assumed as
the deferred purchase price of property, all conditional sale obligations of
UNBC and all obligations of UNBC under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of business),
(iv) all obligations, contingent or otherwise, of UNBC in respect of any letters
of credit, banker's acceptance, security purchase facilities or similar credit
transactions, (v) all obligations of the type referred to in clauses (i) through
(iv) above of other persons for the payment of which UNBC is responsible or
liable as obligor, guarantor or otherwise and (vi) all obligations of the type
referred to in clauses (i) through (v) above of other persons secured by any
lien on any property or assets of UNBC (whether or not such obligation is
assumed by UNBC). Notwithstanding the foregoing, "Senior Indebtedness does not
include: (x) any such indebtedness that by its terms is subordinated to or PARI
PASSU with the Junior Subordinated Debentures or (y) any indebtedness between or
among UNBC or its affiliates (including all other debt securities and guarantees
in respect of those debt securities) issued to (1) any other subsidiary trust of
UNBC or a trustee of such trust and (2) any other trust, or a trustee of such
trust, partnership or other entity affiliated with UNBC that is a financing
vehicle of ours and will issue preferred securities or other securities that
rank PARI PASSU with, or junior to, to the Capital Securities, and (z) any
indebtedness which by its terms is subordinated to trade accounts payable or
accrued liabilities arising in the ordinary course of business to the extent
that payments made to the holders of such indebtedness by the holders of the
Junior Subordinated Debentures as a result of the subordination provisions of
the Indenture would be greater than such payments otherwise would have been as a
result of any obligation of such holders of such indebtedness to pay amounts
over to the obligees on such trade accounts payable or accrued liabilities
arising in the ordinary course of business as a result of subordination
provisions to which such indebtedness is subject.
14. DISSOLUTION EVENT. "Dissolution Event" means that as a
result of any election by UNBC, Finance Trust I is to be dissolved in accordance
with the Declaration, and the Junior Subordinated Debentures held by the
Property Trustee are to be distributed to the holders of the Trust Securities
PRO RATA in accordance with the Declaration. In connection with a Dissolution
Event:
a. GLOBAL DEBENTURE. Definitive Debentures may be
presented to the Indenture Trustee by the Property Trustee in exchange for a
Global Debenture in an aggregate principal amount equal to all Definitive
Debentures outstanding to be registered in the name of the Depositary, or its
nominee, and delivered by the Indenture Trustee to the Depositary for crediting
to the accounts of its participants pursuant to the instructions of the Regular
Trustees. UNBC upon any such presentation shall execute a Global Debenture in
such aggregate principal amount and deliver the same to the Indenture Trustee
for authentication and delivery in accordance with the Indenture and this
Officers' Certificate. Payments on the Junior Subordinated Debentures issued as
a Global Debenture will be make to the Depositary.
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b. NON BOOK-ENTRY CAPITAL SECURITIES. If any Capital
Securities are held in non book-entry certificated form, Definitive Debentures
may be presented to the Indenture Trustee by the Property Trustee and any
Capital Security certificate which represents Capital Securities other than
Capital Securities held by the Depositary or its nominee ("Non Book-Entry
Capital Securities") will be deemed to represent beneficial interests in Junior
Subordinated Debentures presented to the Indenture Trustee by the Property
Trustee having an aggregate principal amount equal to the aggregate liquidation
amount of the Non Book-Entry Capital Securities until such Capital Security
certificates are presented to the Security Registrar for transfer or reissuance
at which time such Capital Security certificate will be cancelled and a
Debenture registered in the name of the holder of the Capital Security
certificate or the transferee of the holder of such Capital Security certificate
as the case may be, with an aggregate principal amount equal to the aggregate
liquidation amount of the Capital Security certificate cancelled will be
executed by UNBC and delivered to the Indenture Trustee for authentication and
delivery in accordance with the Indenture and this Officers' Certificate. On
issue of such Junior Subordinated Debentures, Junior Subordinated Debentures
with an equivalent aggregate principal amount that were presented by the
Property Trustee to the Indenture Trustee will be deemed to have been cancelled.
15. DENOMINATIONS. The Junior Subordinated Debentures will
be issuable in denominations of $25 and integral multiples thereof.
16. ISSUE PRICE. The Junior Subordinated Debentures will be
issued at a price equal to the principal amount thereof.
17. CURRENCY. The Junior Subordinated Debentures will be
denominated in Dollars. The principal of and interest on the Junior
Subordinated Debentures shall be payable in Dollars.
18. PAYMENT CURRENCY. The principal of and interest on the
Junior Subordinated Debentures shall not be payable in a currency other than
Dollars. The principal of and interest on the Junior Subordinated Debentures
shall not be determined with reference to an index based on a coin or currency.
19. REGISTERED SECURITIES. The Junior Subordinated
Debentures shall be issuable as Registered Securities. The Junior Subordinated
Debentures may be issued as Registered Global Securities.
20. ADDITIONAL AMOUNTS. UNBC will not pay additional amounts
on the Junior Subordinated Debentures held by a Person that is not a U.S. Person
in respect of taxes or similar charges withheld or deducted.
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21. DEFINITIVE CERTIFICATES. Section 2.8 of the Indenture
will govern the transferability and exchange of Junior Subordinated Debentures
in definitive form.
22. AGENTS. The Indenture Trustee shall initially serve as
the Registrar and the Paying Agent for the Junior Subordinated Debentures. The
Depository Trust Company shall initially serve as the Depositary for the
Registered Global Security representing Junior Subordinated Debentures.
23. EVENTS OF DEFAULT; COVENANTS. There shall be no
deletions from, modifications or additions to the Events of Default set forth in
Section 5.1 of the Indenture or covenants of UNBC set forth in Article III with
respect to the Junior Subordinated Debentures. Notwithstanding the foregoing, a
valid extension of the interest payment period in accordance with paragraph 7
hereof shall not constitute a default or Event of Default under the Indenture.
There shall be no deletions from or modifications to the covenants of UNBC set
forth in Article III of the Indenture, other than any additional covenants of
UNBC set forth herein.
24. CONVERSION. The Junior Subordinated Debentures will not
be convertible into any other security of UNBC.
25. LISTED ON EXCHANGES. If the Junior Subordinate
Debentures are to be issued as a Global Debenture in connection with the
distribution of the Junior Subordinated Debentures to the holders of the Capital
Securities upon a Dissolution Event, UNBC will use all its reasonable best
efforts to list such Junior Subordinated Debentures on the New York Stock
Exchange or on such other exchange as the Capital Securities are then listed.
26. DIRECT ACTION. UNBC and the Indenture Trustee
acknowledge that pursuant to the Declaration, the holders of Capital Securities
are entitled, in the circumstances and subject to the limitations set forth
therein, to commence a Direct Action (as defined therein) with respect to any
Event of Default under the Indenture.
27. PAYMENT OF EXPENSES. In connection with the offering,
sale and issuance of the Junior Subordinated Debentures to the Property Trustee
and in connection with the sales of the Trust Securities by Finance Trust I,
UNBC, in its capacity as borrower with respect to the Junior Subordinated
Debentures, shall:
a. pay all costs and expenses relating to the
offering, sale and issuance of the Junior Subordinated Debentures, including
commissions to the underwriters payable pursuant to an underwriting agreement
and compensation of the Indenture Trustee in accordance with the provisions of
Section 6.6 of the Indenture.
b. pay all costs and expenses of Finance Trust I
(including, but not limited to, costs and expenses relating to the organization
of Finance Trust I, the offering, sale and issuance of the Trust Securities
(including commissions to the underwriters in connection
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therewith), the fees and expenses of the Property Trustee and the Delaware
Trustee, the costs and expenses relating to the operation of Finance Trust I,
including without limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the acquisition,
financing, and disposition of Finance Trust I's assets); and
c. be primarily and fully liable for any
indemnification obligations arising with respect to the declaration of trust of
Finance Trust.
28. INDEBTEDNESS. UNBC and, by its acceptance of a Junior
Subordinated Debenture or an interest therein, the holder of, and any Person
that acquires a beneficial interest in, this Junior Subordinated Debenture agree
to treat this Junior Subordinated Debenture as indebtedness for United States
federal, state and local tax purposes.
29. OTHER TERMS. The Junior Subordinated Debentures shall
have the other terms and shall be substantially in the form set forth in the
form of Junior Subordinated Debentures attached hereto as Exhibit A. In case of
any conflict between this certificate and the Junior Subordinated Debentures in
the form attached hereto as Exhibit A, the form of the Junior Subordinated
Debentures shall control.
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IN WITNESS WHEREOF, the undersigned has hereunto signed this Certificate
on behalf of UNBC as of the day and year first above written.
UNIONBANCAL CORPORATION
By: /s/ David A. Anderson
--------------------------------------------
Name: David A. Anderson
Title: Senior Vice President and Controller
<PAGE>
Exhibit A
REGISTERED REGISTERED
UNIONBANCAL CORPORATION
7 3/8% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE DUE 2029
NO. R PRINCIPAL AMOUNT:
U.S.$
CUSIP: 908906AA3
[IF THE JUNIOR SUBORDINATED DEBENTURE IS TO BE A GLOBAL DEBENTURE,
INSERT--Unless and until it is exchanged in whole or in part for Junior
Subordinated Debentures in definitive form, this Junior Subordinated Debenture
may not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. Unless this
certificate is presented by an authorized representative of The Depository Trust
Company (55 Water Street, New York, New York) ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of DTC and any payment is made to Cede & Co.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has
an interest herein.]
ORIGINAL ISSUE DATE: February 19, 1999 REDEMPTION DATE/PRICE: See
MATURITY DATE: May 15, 2029 Further Provisions Set Forth
ISSUE PRICE: 100% Herein
INTEREST RATE: 7 3/8 %
INTEREST PAYMENT DATES: February 15, May 15, August 15 and November 15,
commencing May 15, 1999.
REGULAR RECORD DATES: See Further Provisions Set Forth Herein
Dated:[ ]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
By:
-----------------------------
Authorized Signatory
<PAGE>
UNIONBANCAL CORPORATION, a corporation duly organized and existing
under the laws of the State of California (herein referred to as the "Company"),
for value received, hereby promises to pay to The First National Bank of
Chicago, as property trustee (the "Property Trustee") of UnionBanCal Finance
Trust I (the "Trust"), or registered assigns, the Principal Amount specified
above on the Maturity Date specified above (unless and to the extent earlier
redeemed or repaid prior to such Maturity Date), and to pay interest thereon
from February 19, 1999, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, quarterly (subject to deferral as
set forth herein) in arrears on February 15, May 15, August 15 and November 15
of each year, commencing May 15, 1999, at the rate per annum specified above,
until the principal hereof is paid or made available for payment, and (to the
extent that the payment of such interest shall be legally enforceable) at the
rate per annum specified above, compounded quarterly, on any overdue principal
and on any overdue installment of interest. Interest payments for this Junior
Subordinated Debenture will include interest accrued to but excluding each
Interest Payment Date. Interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture
(as defined below), be paid to the Person in whose name this Junior Subordinated
Debenture is registered at the close of business on the Regular Record Date,
which shall be the close of business on the Business Day next preceding such
Interest Payment Date unless otherwise provided for in the Indenture, except
that if this Junior Subordinated Debenture is held by the Property Trustee and
the Capital Securities of the Trustee are no longer in book-entry only form,
such Regular Record Date shall be the close of business on the 15th day (whether
or not a Business Day) next preceding such Interest Payment Date. If any
Interest Payment Date or Maturity with respect to this Junior Subordinated
Debenture falls on a day that is not a Business Day, then payment due on such
Interest Payment Date or at Maturity will be made on the following day that is a
Business Day as if it were made on the date such payment was due and no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date or Maturity, as the case may be, except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. Payment of the principal of and interest, if
any, on this Junior Subordinated Debenture will be made at the office or agency
of the Company maintained for that purpose in the Borough of Manhattan, The City
of New York, and at any other office or agency maintained by the Company for
such purpose, in Dollars; 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; and
PROVIDED, FURTHER, that the Holder of this Junior Subordinated Debenture shall
be entitled to receive payments of principal of and interest, if any, on this
Junior Subordinated Debenture by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Trustee not less than 15 days prior to the applicable payment date.
Notwithstanding the foregoing, so long as the Holder of this Junior Subordinated
Debenture is the Property Trustee, the payment of the principal of and interest
on this Junior Subordinated Debenture will be made at such place and to such
account as may be designated by the Property Trustee.
The indebtedness evidenced by this Junior Subordinated Debenture is, to
the extent provided in the Indenture, subordinate and junior in right of payment
to the prior payment in full of all Senior Indebtedness of the Company, and this
Junior Subordinated Debenture is issued subject to the provisions of the
Indenture with respect thereto. Each Holder of this Junior Subordinated
Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior
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Indebtedness, whether now outstanding or hereafter incurred, and waives reliance
by each such Holder upon said provisions.
Reference is hereby made to the further provisions of this Junior
Subordinated Debenture set forth below, 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 or its duly appointed co-authenticating agent by manual signature, this
Junior Subordinated Debenture shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
This Junior Subordinated Debenture is one of a duly authorized issue of
securities (herein called the "Securities") of the Company (which term includes
any successor corporation under the Indenture hereinafter referred to) issued
and to be issued pursuant to such Indenture. This Junior Subordinated Debenture
is one of a series designated by the Company as its 7 3/8% Junior Subordinated
Deferrable Interest Debentures due 2029 (the "Junior Subordinated Debentures"),
limited in aggregate principal amount to $360,824,750. The Indenture does not
limit the aggregate principal amount of other debt securities that may be issued
thereunder.
The Company issued this Junior Subordinated Debenture pursuant to an
Indenture, dated as of February 19, 1999 (herein called the "Indenture" which
term, for the purpose of this Junior Subordinated Debenture, shall include the
Officers' Certificate dated February 19, 1999, delivered pursuant to Sections
2.1 and 2.3 of the Indenture), between the Company and The First National Bank
of Chicago, 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 Holders of the Junior Subordinated Debentures and of the terms
upon which the Junior Subordinated Debentures are, and are to be, authenticated
and delivered.
Except as otherwise provided in the Indenture, the Junior Subordinated
Debentures are issuable as Registered Securities, without coupons, in
denominations of $25 and any amount in excess thereof which is an integral
multiple of $25. As provided in the Indenture and subject to certain
limitations therein set forth, Junior Subordinated Debentures are exchangeable
for a like aggregate principal amount of Junior Subordinated Debentures of like
tenor of any authorized denomination, as requested by the Holder surrendering
the same, upon surrender of the Junior Subordinated Debenture or Junior
Subordinated Debentures to be exchanged at any office or agency described below
where Junior Subordinated Debentures may be presented for registration of
transfer.
As provided in the Indenture and subject to certain limitations therein
set forth, the Junior Subordinated Debentures are redeemable, in whole or in
part, without penalty, at the option of the Company (i) before February 19,
2004, within 90 days of the occurrence and continuation of a Tax Event, an
Investment Company Event, or a Regulatory Capital Event and (ii) on or after
February 19, 2004, at a redemption price (the "Redemption Price") equal to 100%
of the principal amount per Junior Subordinated Debenture, plus, in each case,
any accrued and unpaid interest thereon, including any Compounded Interest and
Additional Interest, if any, to the date of such redemption.
Notwithstanding the foregoing, installments of interest becoming due and
payable prior to the date fixed for redemption of any Junior Subordinated
Debenture will be payable to the Holder of such
3
<PAGE>
Junior Subordinated Debenture of record at the close of business on the relevant
Regular Record Date referred to above, all as provided in the Indenture.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of the Junior
Subordinated Debentures to be redeemed. The notice of redemption to each such
Holder shall specify the principal amount of each Junior Subordinated Debenture
held by such Holder to be redeemed, the date fixed for redemption, the
Redemption Price, the place or places of payment, that payment will be made upon
presentation and surrender of the Junior Subordinated Debentures, that interest
accrued to the date fixed for redemption will be paid as specified in such
notice and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. In case the Junior Subordinated
Debentures are to be redeemed in part only, the notice of redemption to
Registered Holders of the Junior Subordinated Debentures shall state the portion
of the principal amount thereof to be redeemed and shall state that on and after
the date fixed for redemption, upon surrender of such Junior Subordinated
Debenture, a new Junior Subordinated Debenture or Junior Subordinated Debentures
in principal amount equal to the unredeemed portion thereof will be issued.
For all purposes of this Junior Subordinated Debenture and the
Indenture, unless the context otherwise requires, all provisions relating to the
redemption by the Company of this Junior Subordinated Debenture shall relate, in
the case that this Junior Subordinated Debenture is redeemed or to be redeemed
by the Company only in part, to that portion of the principal amount of this
Junior Subordinated Debenture that has been or is to be redeemed.
As provided in the Indenture and subject to certain limitations therein
set forth, if certain Tax Events described therein occur, the Company will have
the right, prior to a dissolution of the Trust, to accelerate the Principal
Amount of this Junior Subordinated Debenture to the minimum extent required so
that interest on this Junior Subordinated Debenture will be deductible for
United States federal income tax purposes, but in no event may the resulting
maturity of this Junior Subordinated Debenture be less than 15 years from the
date of original issuance.
If an Event of Default with respect to the Junior Subordinated
Debentures shall occur and be continuing, the principal of the Junior
Subordinated Debentures may be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture permits, in certain circumstances therein specified, the
amendment thereof without the consent of the Holders of the Securities. The
Indenture also permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations under the
Indenture of the Company and the rights of 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 aggregate principal
amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all the 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 Junior Subordinated Debenture shall be
conclusive and binding upon such Holder and upon all future Holders of this
Junior Subordinated Debenture and of any Junior Subordinated Debenture 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
Junior Subordinated Debenture.
4
<PAGE>
No reference herein to the Indenture and no provision of this Junior
Subordinated Debenture or, subject to the provisions for satisfaction and
discharge in Article X of the Indenture, shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of and
interest on this Junior Subordinated Debenture 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, so long as the Company is not in default in the payment of interest
on the Junior Subordinated Debentures, it shall have the right at any time, and
from time to time, during the term of the Junior Subordinated Debentures to
defer payments of interest by extending the interest payment period of such
Junior Subordinated Debentures for a period not exceeding 20 consecutive
quarters (an "Extension Period"), PROVIDED, that no Extension Period may extend
beyond the Maturity Date. At the end of an Extension Period, the Company shall
pay all interest then accrued and unpaid (together with interest thereon at the
rate specified for the Junior Subordinated Debentures to the extent that payment
of such interest is enforceable under applicable law). Before the termination
of any such Extended Interest Payment Period, the Company may further extend
such Extended Interest Payment Period, PROVIDED, HOWEVER, that such Extended
Interest Payment Period together with all such further extensions thereof shall
not exceed 20 consecutive quarterly periods. At the termination of any such
Extended Interest Payment Period and upon the payment of all accrued and unpaid
interest and any additional amounts then due, the Company may select a new
Extension Period.
The Indenture permits the Company, by irrevocably depositing, in amounts
and maturities sufficient to pay and discharge at the Stated Maturity or
Redemption Date, as the case may be, the entire indebtedness on all Outstanding
Junior Subordinated Debentures, cash or U.S. Government Obligations with the
Trustee in trust solely for the benefit of the Holders of all Outstanding Junior
Subordinated Debentures, to defease the Indenture with respect to such Junior
Subordinated Debentures, and upon such deposit the Company shall be deemed to
have paid and discharged its entire indebtedness on such Junior Subordinated
Debentures. Thereafter, Holders would be able to look only to such trust fund
for payment of principal and interest at the Stated Maturity or Redemption Date,
as the case may be.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of Junior Subordinated Debentures is registrable in the
Security Register, upon surrender of a Junior Subordinated Debenture for
registration of transfer at the office or agency of the Company in the Borough
of Manhattan, The City of New York, or at such other offices or agencies as the
Company may designate, 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 Junior Subordinated Debentures of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
No service charge shall be made by the Company, the Trustee or the
Security Registrar 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 Junior Subordinated Debenture 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 Junior Subordinated
Debenture is registered as the owner hereof for all purposes, whether or not
this Junior Subordinated Debenture be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
5
<PAGE>
THIS JUNIOR SUBORDINATED DEBENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING, WITHOUT LIMITATION,
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
All undefined terms used in this Junior Subordinated Debenture which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture.
6
<PAGE>
IN WITNESS WHEREOF, UnionBanCal Corporation has caused this Instrument
to be signed by the signature or facsimile signature of its Chairman of the
Board, its President, a Vice President, its Treasurer or an Assistant Treasurer
and attested by its Secretary or an Assistant Secretary by his or her signature
or a facsimile thereof, and its corporate seal or a facsimile of its corporate
seal to be affixed hereunto or imprinted hereon.
(SEAL) UNIONBANCAL CORPORATION
By
---------------------------------
Name:
Title:
Attest:
- -----------------------------
Name:
Title:
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT ____ Custodian _____
(Cust.) (Minor)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right Under Uniform Gifts to Minor Act
of survivor ship and not as
tenants in common
___________________________
(State)
Additional abbreviations may also be used though not in the above list.
___________________________
FOR VALUE RECEIVED, the undersigned hereby sells(s), assign(s) and transfer(s)
unto
Please Insert Social Security or Employer
Identification number of assignee
- ----------------------------------
___ ___
- ----------------------------------
________________________________________________________________________________
Please Print or Typewrite Name and Address
Including Postal Zip Code of Assignee
________________________________________________________________________________
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing ____________________________ attorney to transfer said Security
on the books of the Company, with full power of substitution in the premises.
Dated: _______________________________ _ _______ ____________________________
Signature
NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Junior Subordinated
Debenture in every particular, without alteration or enlargement
or any change whatever.
8
<PAGE>
EXHIBIT 4.3
- --------------------------------------------------------------------------------
GUARANTEE AGREEMENT
UNIONBANCAL FINANCE TRUST I
Dated as of February 19, 1999
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 DEFINITIONS AND INTERPRETATION. . . . . . . . . . . . . . . . . .2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION. . . . . . . . . . . . . . . . .5
SECTION 2.2 LISTS OF HOLDERS. . . . . . . . . . . . . . . . . . . . . . . . .5
SECTION 2.3 REPORTS BY THE GUARANTEE TRUSTEE. . . . . . . . . . . . . . . . .5
SECTION 2.4 PERIODIC REPORTS TO GUARANTEE TRUSTEE . . . . . . . . . . . . . .5
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. . . . . . . . .6
SECTION 2.6 EVENTS OF DEFAULT; WAIVER . . . . . . . . . . . . . . . . . . . .6
SECTION 2.7 EVENT OF DEFAULT; NOTICE. . . . . . . . . . . . . . . . . . . . .6
SECTION 2.8 CONFLICTING INTERESTS . . . . . . . . . . . . . . . . . . . . . .6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 POWERS AND DUTIES OF THE GUARANTEE TRUSTEE. . . . . . . . . . . .7
SECTION 3.2 CERTAIN RIGHTS OF GUARANTEE TRUSTEE . . . . . . . . . . . . . . .8
SECTION 3.3 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE . . . . . 10
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 GUARANTEE TRUSTEE: ELIGIBILITY. . . . . . . . . . . . . . . . . 10
SECTION 4.2 APPOINTMENT, REMOVAL AND RESIGNATION OF GUARANTEE TRUSTEE . . . 11
ARTICLE V
GUARANTEE
SECTION 5.1 GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.2 WAIVER OF NOTICE AND DEMAND . . . . . . . . . . . . . . . . . . 12
SECTION 5.3 OBLIGATIONS NOT AFFECTED. . . . . . . . . . . . . . . . . . . . 12
SECTION 5.4 RIGHTS OF HOLDERS . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.5 GUARANTEE OF PAYMENT. . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.6 SUBROGATION . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.7 INDEPENDENT OBLIGATIONS . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 LIMITATION OF TRANSACTIONS. . . . . . . . . . . . . . . . . . . 14
SECTION 6.2 SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . 14
i
<PAGE>
ARTICLE VII
TERMINATION
SECTION 7.1 TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 EXCULPATION . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 8.2 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . . . . . 16
SECTION 9.2 AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 9.3 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 9.4 BENEFIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 9.5 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . 17
</TABLE>
ii
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Guarantee"), dated as of February 19,
1999, is executed and delivered by UnionBanCal Corporation, a California
corporation (the "Guarantor"), and The First National Bank of Chicago, as
trustee (the "Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Capital Securities (as defined herein) of
UnionBanCal Finance Trust I, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of February 19, 1999, among the trustees of the Issuer
named therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof up to 14,000,000 preferred securities (the "Capital
Securities"), having a liquidation amount of $25 per Capital Security designated
the 7 3/8% Capital Securities.
WHEREAS, as incentive for the Holders to purchase the Capital
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Guarantee, to pay to the Holders of the Capital
Securities the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein.
WHEREAS, as of the date hereof, the Guarantor is also executing and
delivering a guarantee agreement (the "Common Securities Guarantee") in
substantially identical terms to this Guarantee for the benefit of the holders
of the Common Securities (as defined herein), except that if an Event of Default
(as defined in the Indenture) has occurred and is continuing, the rights of
holders of the Common Securities to receive payments under the Common Securities
Guarantee are subordinated to the rights of Holders of Capital Securities to
receive Guarantee Payments under this Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Capital Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the benefit of
the Holders.
<PAGE>
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 DEFINITIONS AND INTERPRETATION.
In this Guarantee, unless the context otherwise requires:
(a) Capitalized terms used in this Guarantee but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) terms defined in the Declaration as at the date of execution of
this Guarantee have the same meaning when used in this Guarantee unless
otherwise defined in this Guarantee;
(c) a term defined anywhere in this Guarantee has the same meaning
throughout;
(d) all references to "the Guarantee" or "this Guarantee" are to this
Guarantee as modified, supplemented or amended from time to time;
(e) all references in this Guarantee to Articles and Sections are to
Articles and Sections of this Guarantee, unless otherwise specified; a term
defined in the Trust Indenture Act has the same meaning when used in this
Guarantee, unless otherwise defined in this Guarantee or unless the context
otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"AUTHORIZED OFFICER" of a Person means any Person that is authorized to
legally bind such Person; PROVIDED, HOWEVER, that the Authorized Officer signing
an Officers' Certificate given pursuant to Section 314(a)(4) of the Trust
Indenture Act shall be the principal executive, financial or accounting officer
of such Person.
"CAPITAL SECURITIES" has the meaning assigned thereto in the recitals
hereto.
"COMMON SECURITIES" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"COMMON SECURITIES GUARANTEE" has the meaning assigned thereto in the
recitals hereto.
"CORPORATE TRUST OFFICE" means the office of the Guarantee Trustee at
which the corporate trust business of the Guarantee Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Agreement is located at,
2
<PAGE>
The First National Bank of Chicago
One First National Plaza, Suite 0126
Chicago, IL 60670-0126
Attention: Corporate Trust Services Division
"COVERED PERSON" means any Holder or beneficial owner of Capital
Securities.
"DECLARATION" has the meaning assigned thereto in the recitals hereto.
"EVENT OF DEFAULT" means (a) a failure by the Guarantor to perform any
of its payments or other obligations under this Guarantee or (b) if applicable,
the failure by the Guarantor to deliver the designated securities upon an
appropriate election by a Holder of Capital Securities to convert or exchange
the Capital Securities into such designated security.
"GUARANTEE" has the meaning assigned thereto in the recitals hereto.
"GUARANTEE PAYMENTS" means the following payments or distributions,
without duplication, with respect to the Capital Securities, to the extent not
paid or made by the Issuer: (i) any accumulated and unpaid Distributions (as
defined in the Declaration) that are required to be paid on such Capital
Securities to the extent the Issuer shall have funds available therefor, (ii)
the redemption price (the "Redemption Price"), and all accumulated and unpaid
Distributions to the date of redemption, to the extent the Issuer has funds
available therefor, with respect to any Capital Securities called for redemption
by the Issuer, and (iii) upon a voluntary or involuntary dissolution, winding-up
or termination of the Issuer (other than in connection with the redemption of
all of the Capital Securities or in connection with the distribution of the
Junior Subordinated Debentures to the Holders in exchange for Capital Securities
as provided in the Declaration), the lesser of (a) the aggregate of the
liquidation amount and all accumulated and unpaid Distributions on the Capital
Securities to the date of payment, to the extent the Issuer shall have funds
available therefor, and (b) the amount of assets of the Issuer remaining
available for distribution to Holders of Capital Securities then outstanding
upon the liquidation of the Issuer (in either case, the "Liquidation
Distribution"). If an Event of Default (as defined in the Indenture) has
occurred and is continuing, the rights of holders of the Common Securities to
receive payments under the Common Securities Guarantee Agreement are
subordinated to the rights of Holders of Capital Securities to receive Guarantee
Payments.
"GUARANTEE TRUSTEE" means The First National Bank of Chicago, until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee, and thereafter means each such
Successor Guarantee Trustee.
"GUARANTOR" has the meaning assigned thereto in the recitals hereto.
"HOLDER" shall mean any holder, as registered on the books and records
of the Issuer, of any Capital Securities; PROVIDED, HOWEVER, that, in
determining whether the holders of the requisite percentage of Capital
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
3
<PAGE>
"INDEMNIFIED PERSON" means the Guarantee Trustee, any Affiliate of the
Guarantee Trustee, or any officers, directors, shareholders, members, partners,
employees, representatives, nominees, custodians or agents of the Guarantee
Trustee.
"INDENTURE" means the Indenture dated as of February 19, 1999 between
the Guarantor and The First National Bank of Chicago, as trustee, or, if amended
or supplemented as provided therein, as so amended or supplemented or both, and
shall include the forms and terms of a particular series of securities
established as contemplated thereunder.
"ISSUER" has the meaning assigned thereto in the recitals hereto.
"LIST OF HOLDERS" shall have the meaning set forth in Section 2.2.
"MAJORITY IN LIQUIDATION AMOUNT OF THE CAPITAL SECURITIES" means, except
as provided in the terms of the Capital Securities, or except as provided by the
Trust Indenture Act, a vote by Holder(s), voting separately as a class, of more
than 50% of the liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are determined) of
all Capital Securities.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"RESPONSIBLE OFFICER" means, with respect to the Guarantee Trustee, any
officer within the Corporate Trust Office of the Guarantee Trustee, including
any vice president, any assistant vice president, any assistant secretary, the
treasurer, any assistant treasurer or other officer of the Corporate Trust
Office of the Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers, and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"SUCCESSOR GUARANTEE TRUSTEE" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"TRUST SECURITIES" means the Common Securities and the Capital
Securities.
4
<PAGE>
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION.
(a) Upon its public offering pursuant to the registration
requirements of the Securities Act, this Guarantee will be subject to the
provisions of the Trust Indenture Act that will be required to be part of this
Guarantee and shall, to the extent applicable, be governed by such provisions;
and
(b) if and to the extent that any provision of this Guarantee limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.2 LISTS OF HOLDERS.
(a) The Guarantor shall provide the Guarantee Trustee with a list, in
such form as the Guarantee Trustee may reasonably require, of the names and
addresses of the Holders ("List of Holders") (i) within 14 days after each
record date for payment of Distributions, as of such record date, and (ii) at
any other time, within 30 days of receipt by the Guarantor of a written request
for a List of Holders as of a date no more than 14 days before such List of
Holders is given to the Guarantee Trustee, PROVIDED that the Guarantor shall not
be obligated to provide such List of Holders at any time the List of Holders
does not differ from the most recent List of Holders given to the Guarantee
Trustee by the Guarantor. The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3 REPORTS BY THE GUARANTEE TRUSTEE.
Within 60 days after May 15 of each year, the Guarantee Trustee shall
provide to the Holders such reports as are required by Section 313 of the Trust
Indenture Act, if any, in the form and in the manner provided by Section 313 of
the Trust Indenture Act. The Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 PERIODIC REPORTS TO GUARANTEE TRUSTEE.
The Guarantor shall provide to the Guarantee Trustee such documents,
reports and information (if any) as are required by Section 314 and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, the manner and at the times required by Section 314 of the Trust Indenture
Act.
Delivery of such reports, information and documents to the Guarantee
Trustee is for informational purposes only and the Guarantee Trustee's receipt
of such shall not constitute
5
<PAGE>
constructive notice of any information contained therein, including the
Guarantor's compliance with any of its covenants hereunder (as to which the
Guarantee Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Guarantee
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.6 EVENTS OF DEFAULT; WAIVER.
The Holders of a Majority in liquidation amount of Capital Securities
may, by vote, on behalf of the Holders of all of the Capital Securities, waive
any past Event of Default and its consequences. Upon such waiver, any such
Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Guarantee, but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
SECTION 2.7 EVENT OF DEFAULT; NOTICE.
(a) The Guarantee Trustee shall, within 90 days after the occurrence
of an Event of Default actually known to a Responsible Officer of the Guarantee
Trustee, transmit by mail, first class postage prepaid, to the Holders, notices
of all such Events of Default unless such defaults have been cured before the
giving of such notice, PROVIDED that the Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Guarantee
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of
any Event of Default unless the Guarantee Trustee shall have received written
notice thereof, or a Responsible Officer of the Guarantee Trustee charged with
the administration of this Guarantee shall have obtained actual knowledge
thereof.
SECTION 2.8 CONFLICTING INTERESTS.
The Declaration shall be deemed to be specifically described in this
Guarantee for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
6
<PAGE>
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 POWERS AND DUTIES OF THE GUARANTEE TRUSTEE.
(a) This Guarantee shall be held by the Guarantee Trustee for the
benefit of the Holders and the Guarantee Trustee shall not transfer this
Guarantee to any Person except a Holder exercising his or her rights pursuant to
Section 5.4(b) or to a Successor Guarantee Trustee on acceptance by such
Successor Guarantee Trustee of its appointment to act as Successor Guarantee
Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, and such vesting and
succession of title shall be effective whether or not conveyancing documents
have been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of
the Guarantee Trustee has occurred and is continuing, the Guarantee Trustee
shall enforce this Guarantee for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee, and no implied covenants shall be read into this Guarantee
against the Guarantee Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.6) and is actually known to a
Responsible Officer of the Guarantee Trustee, the Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Guarantee, and shall
use the same degree of care and skill in its exercise thereof as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(d) No provision of this Guarantee shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express provisions of
this Guarantee, and the Guarantee Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Guarantee, and no implied
covenants or obligations shall be read into this Guarantee
against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Guarantee Trustee and conforming to the
requirements of this
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Guarantee; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be
furnished to the Guarantee Trustee, the Guarantee Trustee shall
be under a duty to examine the same to determine whether or not
they conform to the requirements of this Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment
was made;
(iii) the Guarantee 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 not less than a Majority
in liquidation amount of the Capital Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Guarantee Trustee, or exercising any trust or power conferred
upon the Guarantee Trustee under this Guarantee; and
(iv) no provision of this Guarantee shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if the Guarantee Trustee
shall have reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of
this Guarantee or indemnity, reasonably satisfactory to the Guarantee
Trustee, against such risk or liability is not reasonably assured to it.
SECTION 3.2 CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely, and shall be
fully 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, sent or presented by the proper party
or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Guarantee shall be sufficiently evidenced by an Officers'
Certificate.
(iii) Whenever, in the administration of this Guarantee, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Guarantor.
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(iv) The Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any rerecording,
refiling or re-registration thereof).
(v) The Guarantee Trustee may consult with counsel of its
selection, and the advice or opinion of such counsel with respect to
legal matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion. Such counsel may
be counsel to the Guarantor or any of its Affiliates and may include any
of its employees. The Guarantee Trustee shall have the right at any
time to seek instructions concerning the administration of this
Guarantee from any court of competent jurisdiction.
(vi) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee at
the request or direction of any Holder, unless such Holder shall have
provided to the Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses and the expenses of the
Guarantee Trustee's agents, nominees or custodians) and liabilities that
might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Guarantee
Trustee; PROVIDED that nothing contained in this Section 3.2(a)(vi)
shall be taken to relieve the Guarantee Trustee, upon the occurrence of
an Event of Default, of its obligation to exercise the rights and powers
vested in it by this Guarantee.
(vii) The Guarantee 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 Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit.
(viii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, nominees, custodians or attorneys, and the Guarantee
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.
(ix) Any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders and the signature of the Guarantee
Trustee or its agents alone shall be sufficient and effective to perform
any such action. No third party shall be required to inquire as to the
authority of the Guarantee Trustee to so act or as to its compliance
with any of the terms and provisions of this Guarantee, both of which
shall be conclusively evidenced by the Guarantee Trustee's or its
agent's taking such action.
(x) Whenever in the administration of this Guarantee the
Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (i) may request instructions from the
Holders of a Majority in liquidation amount of the Capital Securities,
(ii) may refrain from enforcing such remedy or right or taking such
other action until such instructions are
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received, and (iii) shall be protected in conclusively relying on or
acting in accordance with such instructions.
(xi) The Capital Securities Trustee shall not be liable for
any action taken, suffered, or omitted to be taken by it in good faith
and reasonably believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Guarantee.
(b) No provision of this Guarantee shall be deemed to impose any duty
or obligation on the Guarantee Trustee to perform any act or acts or exercise
any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty.
SECTION 3.3 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF GUARANTEE.
The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no
representation as to the validity or sufficiency of this Guarantee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 GUARANTEE TRUSTEE: ELIGIBILITY.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Securities and Exchange Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by federal, state, territorial or District of
Columbia authority. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for the
purposes of this Section 4.1(a)(ii), 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.
(b) If at any time the Guarantee Trustee shall cease to be eligible
to so act under Section 4.1(a), the Guarantee Trustee shall immediately resign
in the manner and with the effect set out in Section 4.2(c).
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(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 APPOINTMENT, REMOVAL AND RESIGNATION OF GUARANTEE
TRUSTEE.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed
or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold office until
a Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery of an instrument of resignation or removal, the Guarantee Trustee
resigning or being removed may petition any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions to
act of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or resignation of
the Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay to
the Guarantee Trustee all amounts accumulated to the date of such termination,
removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 GUARANTEE.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of
set-off or counterclaim that the Issuer may have or assert.
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The Guarantor's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Guarantor to the Holders or by
causing the Issuer to pay such amounts to the Holders.
SECTION 5.2 WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of this Guarantee and
of any liability to which it applies or may apply, presentment, demand for
payment, any right or remedy to require a proceeding first against the Issuer or
any other Person before proceeding directly against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3 OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the Guarantor under
this Guarantee shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Capital Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Capital Securities or the extension of
time for the performance of any other obligation under, arising out of, or in
connection with, the Capital Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Junior Subordinated Debentures);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Capital Securities, or any
action on the part of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
(e) any invalidity of, or defect or deficiency in, the Capital
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
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(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4 RIGHTS OF HOLDERS.
(a) The Holders of a Majority in liquidation amount of the Capital
Securities then outstanding have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Guarantee Trustee
in respect of this Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under this Guarantee.
(b) If the Guarantee Trustee fails to enforce this Guarantee, any
Holder of Capital Securities may institute a legal proceeding directly against
the Guarantor to enforce the Guarantee Trustee's rights under this Guarantee,
without first instituting a legal proceeding against the Issuer, the Guarantee
Trustee or any other person or entity. The Guarantor waives any right or remedy
to require that any action be brought first against the Issuer or any other
person or entity before proceeding directly against the Guarantor.
Notwithstanding the foregoing, if the Guarantor has failed to make a Guarantee
Payment, a Holder of Capital Securities may directly institute a proceeding
against the Guarantor for enforcement of this Guarantee for such payment.
SECTION 5.5 GUARANTEE OF PAYMENT.
This Guarantee creates a guarantee of payment and not of collection.
SECTION 5.6 SUBROGATION.
The Guarantor shall be subrogated to all (if any) rights of the Holders
of Capital Securities against the Issuer in respect of any amounts paid to such
Holders by the Guarantor under this Guarantee; PROVIDED, HOWEVER, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee, if, at the time of any such payment,
any amounts are due and unpaid under this Guarantee. If any amount shall be
paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 5.7 INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Capital
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
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notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 LIMITATION OF TRANSACTIONS.
So long as any Capital Securities remain outstanding, if (i) the
Guarantor has exercised its option to defer interest payments on the Junior
Subordinated Debentures by extending the interest payment period and such
extension period, or any extension thereof, shall be continuing, (ii) the
Guarantor shall be in default with respect to its payment or other obligations
under this Guarantee or (iii) there shall have occurred and be continuing an
Event of Default under the Declaration or any event that, with the giving of
notice or lapse of time or both, would constitute an Event of Default under the
Declaration, then the Guarantor shall not (a) declare or pay any dividend on,
make any distributions with respect to, or redeem, purchase, acquire, or make
any liquidation payment with respect to, any of its capital stock or (b) make
any payment of interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities of the Guarantor that rank PARI PASSU with or
junior to the Junior Subordinated Debentures or make any guarantee payment with
respect to the foregoing; PROVIDED HOWEVER, that the foregoing restrictions in
(a) and (b) above do not apply to (i) repurchases, redemptions or other
acquisitions of shares of the capital stock of the Guarantor in connection with
(1) any employment contract, benefit plan or other similar arrangement with or
for the benefit of any one or more employees, officers, directors or
consultants, (2) a dividend reinvestment or shareholder stock purchase plan or
(3) the issuance of capital stock of the Guarantor, or securities convertible
into to exercisable for capital stock of the Guarantor, as consideration in an
acquisition transaction entered into before the Extension Period, (ii) an
exchange, redemption or conversion of any class or series of capital stock of
the Guarantor, or any capital stock of one of its subsidiaries, for any class or
series of capital stock of the Guarantor, or of any class or series of the
indebtedness of the Guarantor for any class or series of capital stock of the
Guarantor, (iii) the purchase of fractional interests in shares of the capital
stock of the Guarantor pursuant to the conversion or exchange provisions of such
capital stock or the security being converted into or exchanged for such capital
stock, (iv) any declaration of a dividend in connection with the implementation
of a stockholders' rights plan, or the issuance of rights, stock or other
property under any such plan in the future, or the redemption or repurchase of
any such rights pursuant thereto, (v) any dividend in the form of stock,
warrants, options or other rights where the dividend or the stock issuable upon
exercise of warrants, options or other rights is the same stock as that on which
the dividend is being paid or ranks PARI PASSU or junior to that stock; or (vi)
payments by the Guarantor under this Guarantee, the Common Securities Guarantee
or any similar guarantee by the Guarantor with respect to any trust common or
trust preferred securities of its subsidiaries.
SECTION 6.2 SUBORDINATION.
This Guarantee will constitute an unsecured obligation of the Guarantor
and will rank (i) subordinate and junior in right of payment to all other
liabilities of the Guarantor (except any
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liabilities that may be PARI PASSU or junior expressly by their terms), (ii)
PARI PASSU with the most senior preferred or preference stock now or hereafter
issued by the Guarantor and with any guaranty now or hereafter entered into by
the Guarantor in respect of any preferred or preference stock of any Affiliate
of the Guarantor and (iii) senior to the Guarantor's common stock.
ARTICLE VII
TERMINATION
SECTION 7.1 TERMINATION.
This Guarantee shall terminate as to each Holder upon (i) full payment
of the Redemption Price and accumulated and unpaid Distributions with respect to
all Capital Securities, (ii) the distribution of the Junior Subordinated
Debentures to the Holders of the Capital Securities or (iii) full payment of the
amounts payable in accordance with the Declaration upon liquidation of the
Issuer. This Guarantee shall terminate completely upon full payment of the
amounts payable in accordance with the Declaration. Notwithstanding the
foregoing, this Guarantee will continue to be effective or will be reinstated,
as the case may be, if at any time any Holder must restore payment of any sum
paid under the Capital Securities or under this Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage, liability, expense or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in accordance with
this Guarantee and in a manner that such Indemnified Person reasonably believed
to be within the scope of the authority conferred on such Indemnified Person by
this Guarantee or by law, except that an Indemnified Person shall be liable for
any such loss, damage or claim incurred by reason of such Indemnified Person's
negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
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SECTION 8.2 INDEMNIFICATION.
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person 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 (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The provisions of this Section 8.2 shall survive the termination of
this Guarantee or the resignation or removal of the Guarantee Trustee.
When the Guarantee Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(d) or Section
5.1(e) of the Indenture, the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for services are intended to
constitute expenses of administration under any applicable federal or state
bankruptcy, insolvency or other similar law.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Guarantee shall bind the
successors, assigns, receivers, trustees and representatives of the Guarantor
and shall inure to the benefit of the Holders of the Capital Securities then
outstanding. Except in connection with any merger or consolidation of the
Guarantor with or into another entity permitted by Section 9.1 of the Indenture
or any sale, transfer or lease of the Guarantor's assets to another entity
permitted by Section 9.1 of the Indenture, the Guarantor may not assign its
rights or delegate its obligations under this Guarantee without the prior
approval of the holders of at least a Majority in liquidation amount of the
Capital Securities then outstanding.
SECTION 9.2 AMENDMENTS.
Except with respect to any changes that do not adversely affect the
rights of Holders in any material respect (in which case no consent of Holders
will be required), this Guarantee may only be amended with the prior approval of
the Holders of at least a Majority in liquidation amount of the Capital
Securities then outstanding. The provisions of Section 12.2 of the Declaration
with respect to meetings of Holders apply to the giving of such approval.
SECTION 9.3 NOTICES.
All notices provided for in this Guarantee shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by first class mail, as follows:
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(a) If given to the Guarantee Trustee, at the Guarantee Trustee's
mailing address set forth below (or such other address as the Guarantee Trustee
may give notice of to the Holders of the Capital Securities):
The First National Bank of Chicago
One First National Plaza, Suite 0126
Chicago, IL 60670-0126
Attention: Corporate Trust Services Division
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Capital Securities):
UnionBanCal Corporation
400 California Street
San Francisco, California 94104
Attention: Corporate Secretary
(c) If given to any Holder of Capital Securities, at the address set
forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 9.4 BENEFIT.
This Guarantee is solely for the benefit of the Holders of the Capital
Securities and, subject to Section 3.1(a), is not separately transferable from
the Capital Securities.
SECTION 9.5 GOVERNING LAW.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN
THE STATE OF NEW YORK INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW.
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THIS GUARANTEE is executed as of the day and year first above written.
UNIONBANCAL CORPORATION, as Guarantor
By: /s/ David A. Anderson
--------------------------------------
Name: David A. Anderson
Title: Senior Vice President and
Controller
THE FIRST NATIONAL BANK OF CHICAGO, as
Guarantee Trustee
By: /s/ Sandra L. Caruba
--------------------------------------
Name: Sandra L. Caruba
Title: Vice President
<PAGE>
EXHIBIT 4.4
- --------------------------------------------------------------------------------
AMENDED AND RESTATED DECLARATION
OF TRUST
UNIONBANCAL FINANCE TRUST I
DATED AS OF FEBRUARY 19, 1999
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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ARTICLE I
INTERPRETATION AND DEFINITIONS
<S> <C> <C>
SECTION 1.1. DEFINITIONS.............................................................................1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. TRUST INDENTURE ACT: APPLICATION........................................................9
SECTION 2.2. LISTS OF HOLDERS OF SECURITIES..........................................................9
SECTION 2.3. REPORTS BY THE PROPERTY TRUSTEE........................................................10
SECTION 2.4. PERIODIC REPORTS TO PROPERTY TRUSTEE...................................................10
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.......................................10
SECTION 2.6. EVENTS OF DEFAULT; WAIVER..............................................................10
SECTION 2.7. EVENT OF DEFAULT; NOTICE...............................................................12
ARTICLE III
ORGANIZATION
SECTION 3.1. NAME...................................................................................13
SECTION 3.2. OFFICE.................................................................................13
SECTION 3.3. PURPOSE................................................................................13
SECTION 3.4. AUTHORITY..............................................................................13
SECTION 3.5. TITLE TO PROPERTY OF THE TRUST.........................................................14
SECTION 3.6. POWERS AND DUTIES OF THE REGULAR TRUSTEES..............................................14
SECTION 3.7. PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES...................................17
SECTION 3.8. POWERS AND DUTIES OF THE PROPERTY TRUSTEE..............................................18
SECTION 3.9. CERTAIN DUTIES AND RESPONSIBILITIES OF THE PROPERTY TRUSTEE............................21
SECTION 3.10. CERTAIN RIGHTS OF PROPERTY TRUSTEE....................................................22
SECTION 3.11. DELAWARE TRUSTEE......................................................................25
SECTION 3.12. EXECUTION OF DOCUMENTS................................................................25
SECTION 3.13. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES................................25
SECTION 3.14. DURATION OF TRUST.....................................................................25
SECTION 3.15. MERGERS...............................................................................25
ARTICLE IV
SPONSOR
SECTION 4.1. SPONSOR'S PURCHASE OF COMMON SECURITIES................................................27
SECTION 4.2. RESPONSIBILITIES OF THE SPONSOR........................................................27
i
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ARTICLE V
TRUSTEES
SECTION 5.1. NUMBER OF TRUSTEES.....................................................................28
SECTION 5.2. DELAWARE TRUSTEE.......................................................................28
SECTION 5.3. PROPERTY TRUSTEE; ELIGIBILITY..........................................................29
SECTION 5.4. CERTAIN QUALIFICATIONS OF REGULAR TRUSTEES AND DELAWARE TRUSTEE GENERALLY..............29
SECTION 5.5. REGULAR TRUSTEES.......................................................................30
SECTION 5.6. APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.......................................30
SECTION 5.7. VACANCIES AMONG TRUSTEES...............................................................31
SECTION 5.8. EFFECT OF VACANCIES....................................................................32
SECTION 5.9. MEETINGS...............................................................................32
SECTION 5.10. DELEGATION OF POWER...................................................................32
SECTION 5.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS...........................33
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1. DISTRIBUTIONS..........................................................................33
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1. GENERAL PROVISIONS REGARDING SECURITIES................................................34
SECTION 7.2. SUBORDINATION OF COMMON SECURITIES.....................................................34
SECTION 7.3. EXECUTION AND AUTHENTICATION...........................................................35
SECTION 7.4. FORM AND DATING........................................................................35
SECTION 7.5. PAYING AGENT...........................................................................36
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1. TERMINATION OF TRUST...................................................................36
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1. TRANSFER OF SECURITIES.................................................................37
SECTION 9.2. TRANSFER OF CERTIFICATES...............................................................38
SECTION 9.3. DEEMED SECURITY HOLDERS................................................................39
SECTION 9.4. BOOK ENTRY INTERESTS...................................................................39
SECTION 9.5. NOTICES TO CLEARING AGENCY.............................................................41
SECTION 9.6. APPOINTMENT OF SUCCESSOR CLEARING AGENCY...............................................41
SECTION 9.7. DEFINITIVE CAPITAL SECURITY CERTIFICATES UNDER CERTAIN CIRCUMSTANCES...................41
SECTION 9.8. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES......................................42
ii
<PAGE>
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS
SECTION 10.1. LIABILITY.............................................................................43
SECTION 10.2. EXCULPATION...........................................................................43
SECTION 10.3. FIDUCIARY DUTY........................................................................44
SECTION 10.4. INDEMNIFICATION.......................................................................45
SECTION 10.5. OUTSIDE BUSINESS......................................................................47
ARTICLE XI
ACCOUNTING
SECTION 11.1. FISCAL YEAR...........................................................................48
SECTION 11.2. CERTAIN ACCOUNTING MATTERS............................................................48
SECTION 11.3. BANKING...............................................................................49
SECTION 11.4. WITHHOLDING...........................................................................49
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1. AMENDMENTS............................................................................50
SECTION 12.2. MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY WRITTEN CONSENT......................52
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND
DELAWARE TRUSTEE
SECTION 13.1. REPRESENTATIONS AND WARRANTIES OF PROPERTY TRUSTEE....................................54
SECTION 13.2. REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE....................................55
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. NOTICES...............................................................................55
SECTION 14.2. GOVERNING LAW.........................................................................57
SECTION 14.3. INTENTION OF THE PARTIES..............................................................57
SECTION 14.4. HEADINGS..............................................................................57
SECTION 14.5. SUCCESSORS AND ASSIGN.................................................................57
SECTION 14.6. PARTIAL ENFORCEABILITY................................................................57
SECTION 14.7. COUNTERPARTS..........................................................................57
ANNEX I
TERMS OF CAPITAL SECURITIES AND
COMMON SECURITIES..................................................................................I-1
iii
<PAGE>
EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE...............................................................A1-1
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE................................................................A2-1
EXHIBIT B
SPECIMEN OF JUNIOR SUBORDINATED DEBENTURE...........................................................B-1
EXHIBIT C
UNDERWRITING AGREEMENT..............................................................................C-1
</TABLE>
iv
<PAGE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
- ------------------- -----------
<S> <C>
310(b) ................................................ 5.3(c) & (d)
311(a) ................................................ 2.2(b)
311(b) ................................................ 2.2(b)
312(b) ................................................ 2.2(b)
313 ................................................ 2.3
313(d) ................................................ 2.3
314 ................................................ 2.4
314(a) ................................................ 3.6(j)
314(c) ................................................ 2.5
316(a) ................................................ 2.6(a)- (c)
&(e)
317(b) ................................................ 3.8(h)
</TABLE>
- ---------------
* This Cross-Reference table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
v
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
UNIONBANCAL FINANCE TRUST I
February 19, 1999
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of February 19, 1999, by the Trustees (as defined herein), the
Sponsor (as defined herein) and by the holders, from time to time, of undivided
beneficial interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established UnionBanCal Finance Trust
I (the "Trust"), a trust under the Delaware Business Trust Act pursuant to a
Declaration of Trust dated as of November 17, 1998, (the "Original
Declaration"), and a Certificate of Trust filed with the Secretary of State of
the State of Delaware on November 17, 1998, for the sole purpose of issuing and
selling certain securities representing undivided beneficial interests in the
assets of the Trust and investing the proceeds thereof in certain Junior
Subordinated Debentures (as defined herein) of the Debt Issuer (as defined
herein);
WHEREAS, as of the date hereof, no interests in the Trust have been issued;
and
WHEREAS, all of the Trustees and the Sponsor, by this Declaration, amend
and restate each and every term and provision of the Original Declaration;
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a business trust under the Delaware Business Trust Act and that
this Declaration constitutes the governing instrument of such business trust,
the Trustees declare that all assets contributed to the Trust will be held in
trust for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1. DEFINITIONS.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
<PAGE>
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and Annexes
and Exhibits are to Articles and Sections of and Annexes and Exhibits of or to
this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Declaration unless otherwise defined in this Declaration or unless
the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"90 Day Period" has the meaning specified in Annex I.
"Administrative Action" has the meaning specified in Annex I.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Book Entry Interest" means a beneficial interest in a Global Certificate,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a Saturday, Sunday or any other day
on which banking institutions in New York, New York or Wilmington, Delaware are
permitted or required by any applicable law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code Section 3801 ET SEQ., as it may be amended from time to time, or any
successor legislation.
"Capital Security" has the meaning specified in Section 7.1.
"Capital Security Beneficial Owner" means, with respect to a Book Entry
Interest, a Person who is the beneficial owner of such Book Entry Interest, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency
2
<PAGE>
(directly as a Clearing Agency Participant or as an indirect participant, in
each case in accordance with the rules of such Clearing Agency).
"Capital Security Certificate" means a certificate representing a Capital
Security substantially in the form of Exhibit A-1.
"Certificate" means a Common Security Certificate or a Capital Security
Certificate.
"Change in 1940 Act Law" shall have the meaning specified in Annex I.
"Clearing Agency" means an organization registered as a "Clearing Agency"
pursuant to Section 17A of the Exchange Act that is acting as depositary for the
Capital Securities and in whose name or in the name of a nominee of that
organization shall be registered a Global Certificate and which shall undertake
to effect book entry transfers and pledges of the Capital Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Clearing Agency
effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means February 19, 1999.
"Closing Price" has the meaning specified in Annex I.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Securities Guarantee" means the guarantee agreement to be dated as
of February 19, 1999, of the Sponsor in respect of the Common Securities.
"Common Security" has the meaning specified in Section 7.1.
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Exhibit A-2.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any officer, employee or agent of the Trust or its Affiliates.
3
<PAGE>
"Corporate Trust Office" means the office of the Property Trustee at which
the corporate trust business of the Property Trustee shall, at any particular
time, be principally administered, which office at the date of execution of this
Agreement is located at
The First National Bank of Chicago
One First National Plaza, Suite 0126
Chicago, IL 60670-0126
Attention: Corporate Trust Services Division
"Coupon Rate" has the meaning specified in Annex I.
"Covered Person" means: (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates; and (b) any Holder of Securities.
"Debt Issuer" means UnionBanCal Corporation, a California corporation, in
its capacity as issuer of the Junior Subordinated Debentures under the
Indenture.
"Debt Trustee" means The First National Bank of Chicago, as trustee under
the Indenture until a successor is appointed thereunder, and thereafter means
such successor trustee.
"Declaration" has the meaning set forth in the recitals.
"Delaware Trustee" has the meaning set forth in Section 5.1.
"Definitive Capital Security Certificates" has the meaning set forth in
Section 9.4.
"Depositary" has the meaning specified in Annex I.
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Event of Default" in respect of the Securities means an Event of Default
(as defined in the Indenture) has occurred and is continuing in respect of the
Junior Subordinated Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor legislation.
"Extension Period" has the meaning specified in Annex I.
"Fiscal Year" has the meaning set forth in Section 11.1
4
<PAGE>
"Fiduciary Indemnified Person" has the meaning set forth in Section
10.4(b).
"Global Certificate" has the meaning set forth in Section 9.4(a).
"Guarantee" means the guarantee agreement to be dated as of February 19,
1999, of the Sponsor in respect of the Capital Securities.
"Holder" means a Person in whose name a Security is registered, such Person
being a beneficial owner within the meaning of the Business Trust Act.
"Indemnified Person" means each Company Indemnified Person and each
Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of February 19, 1999 between the
Debt Issuer and The First National Bank of Chicago, as trustee, or, if amended
or supplemented as provided therein, as so amended or supplemented or both, and
shall include the forms and terms of a particular series of securities
established as contemplated thereunder.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Investment Company Event" has the meaning set forth in Annex I hereto.
"Junior Subordinated Debentures" means the series of 7 3/8% Junior
Subordinated Deferrable Interest Debentures due 2029 to be issued by the Debt
Issuer under the Indenture to be held by the Property Trustee, a specimen
certificate for such series of Junior Subordinated Debentures being Exhibit B.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Like Amount" means (1) with respect to a redemption of Securities having
an aggregate Liquidation Amount equal to that portion of the principal amount of
Junior Subordinated Debentures to be contemporaneously redeemed in accordance
with the Indenture, allocated to the Common Securities and to the Capital
Securities based upon the relative Liquidation Amounts of such classes and (2)
with respect to a distribution of Junior Subordinated Debentures to Holders of
Securities in connection with a dissolution or liquidation of the Trust, Junior
Subordinated Debentures having an aggregate principal amount equal to the
aggregate Liquidation Amount of the Securities of the Holder to whom such Junior
Subordinated Debentures are distributed.
"Liquidation" has the meaning specified in Annex I.
5
<PAGE>
"Liquidation Amount" means the stated amount of $25 per Capital Security.
"Liquidated Distribution" has the meaning specified in the terms of the
Securities as set forth in Annex I.
"List of Holders" has the meaning set forth in Section 2.2(a)
"OID" has the meaning specified in Annex I.
"Original Declaration" has the meaning set forth in the recitals.
"Majority in liquidation amount of the Securities" means, except as
provided in the terms of the Capital Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Capital Securities or Holders of
outstanding Common Securities voting separately as a class, who are the record
owners of more than 50% of the aggregate liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant class.
"Offered Securities" means the Capital Securities, the Guarantee and the
Junior Subordinated Debentures.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Declaration shall include:
(a) a statement that each officer signing the Certificate has read the
covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Option Closing Date" means the date of closing of any sale of any
securities issued pursuant to an over-allotment option.
6
<PAGE>
"Paying Agent" has the meaning specified in Section 3.8(h).
"Payment Amount" has the meaning set forth in Section 6.1.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Property Trustee" means the Trustee meeting the eligibility requirements
set forth in Section 5.3.
"Property Trustee Account" has the meaning set forth in Section 3.8(c).
"Pro Rata" has the meaning specified in Annex I.
"Quorum" means a majority of the Regular Trustees or, if there are only two
Regular Trustees, both of them.
"Redemption/Distribution Notice" has the meaning specified in Annex I.
"Redemption Price" has the meaning specified in Annex I.
"Regular Trustee" has the meaning set forth in Section 5.1.
"Regulatory Capital Event" has the meaning specified in Annex I.
"Related Party" means, with respect to the Sponsor, any direct or indirect
wholly owned subsidiary of the Sponsor or any other Person that owns, directly
or indirectly, 100% of the outstanding voting securities of the Sponsor.
"Responsible Officer" means, with respect to the Property Trustee, any
officer within the Corporate Trust Office of the Property Trustee, including any
vice president, any assistant vice president, any assistant secretary, the
treasurer, any assistant treasurer or other officer of the Corporate Trust
Office of the Property Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act or any
successor rule.
"Securities" means the Common Securities and the Capital Securities.
7
<PAGE>
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee and the
Guarantee.
"Special Event" has the meaning set forth in Annex I hereto.
"Sponsor" or "UNBC" means UnionBanCal Corporation, a California
corporation, or any successor entity in a merger, consolidation or amalgamation,
in its capacity as sponsor of the Trust.
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Successor Delaware Trustee" has the meaning set forth in Section 5.6(b).
"Successor Entity" has the meaning set forth in Section 3.15(b).
"Successor Securities" has the meaning set forth in Section 3.15.(b).
"Tax Event" has the meaning set forth in Annex I hereto.
"Tax Opinion" has the meaning set forth in Annex I hereto.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury.
"Trust" has the meaning set forth in the recitals.
"Trustee" or "Trustees" means each Person who has signed this Declaration
as a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"Trust Property" means (i) the Junior Subordinated Debentures, (ii) any
cash on deposit in, or owing to, the Property Trustee Account and (iii) all
proceeds and rights in respect of the foregoing to be held by the Property
Trustee pursuant to the terms of this Declaration for the benefit of the
Securityholders.
8
<PAGE>
"25% in liquidation amount of the Securities" means, except as provided in
the terms of the Capital Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holders of outstanding Capital Securities or Holders of outstanding
Common Securities voting separately as a class, who are the record owners of 25%
or more of the aggregate liquidation amount (including the stated amount that
would be paid on redemption, liquidation or otherwise, plus accumulated and
unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"Underwriting Agreement" means the Underwriting Agreement for the offering
and sale of Capital Securities in the form of Exhibit C.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. TRUST INDENTURE ACT: APPLICATION.
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration and shall, to the extent
applicable, be governed by such provisions. The Trust Indenture Act shall be
applicable to this Declaration except as otherwise set forth herein, as if the
Securities had been sold pursuant to an effective registration statement.
(b) The Property Trustee shall be the only Trustee which is a Trustee for
the purposes of the Trust Indenture Act.
(c) If, and to the extent that, any provision of this Declaration limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such duties imposed under the Trust
Indenture Act shall control.
(d) The application of the Trust Indenture Act to this Declaration shall
not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.2. LISTS OF HOLDERS OF SECURITIES.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Property Trustee (i) within 14 days after each record date for
payment of Distributions, a list in such form as the Property Trustee may
reasonably require of the names and addresses of the Holders of the Securities
("List of Holders") as of such record date, PROVIDED THAT, neither the Sponsor
nor the Regular Trustees on behalf of the Trust shall be obligated to provide
such List of Holders at any time the List of Holders does not differ from the
most recent List of Holders given
9
<PAGE>
to the Property Trustee by the Sponsor and the Regular Trustees on behalf of the
Trust, and (ii) at any other time, within 30 days of receipt by the Trust of a
written request for a List of Holders as of a date no more than 14 days before
such List of Holders is given to the Property Trustee. The Property Trustee
shall preserve, in as current a form as is reasonably practicable, all
information contained in the Lists of Holders given to it or which it receives
in the capacity as Paying Agent (if acting in such capacity), PROVIDED THAT, the
Property Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under Sections
311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3. REPORTS BY THE PROPERTY TRUSTEE.
Within 60 days after May 15 of each year, the Property Trustee shall
provide to the Holders of the Capital Securities such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Property Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4. PERIODIC REPORTS TO PROPERTY TRUSTEE.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Property Trustee such documents, reports and information as
required by Section 314 (if any) and the compliance certificate required by
Section 314 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
Delivery of such reports, information and documents to the Property Trustee
is for informational purposes only and the Property Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Sponsor's
compliance with any of its covenants hereunder (as to which the Property Trustee
is entitled to rely exclusively on Officers' Certificates).
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Declaration that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers' Certificate.
SECTION 2.6. EVENTS OF DEFAULT; WAIVER.
(a) The Holders of a Majority in liquidation amount of Capital Securities
may by vote on behalf of the Holders of all of the Capital Securities, waive any
past Event of Default in
10
<PAGE>
respect of the Capital Securities and its consequences, PROVIDED THAT, if the
underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default under
the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Junior Subordinated Debentures (a
"Super Majority") to be waived under the Indenture, the Event of Default
under the Declaration may only be waived by the vote of the Holders of at
least the proportion in liquidation amount of the Capital Securities that
the relevant Super Majority represents of the aggregate principal amount of
the Junior Subordinated Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Capital Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the Capital
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Capital Securities of an Event of Default with respect to the Capital
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote,
or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, PROVIDED THAT, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such Event of Default under
the Declaration as provided below in this Section 2.6(b), the Event of
Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be waived,
except where the Holders of the Common Securities are deemed to have waived
such Event of Default under the Declaration as provided below in this
Section 2.6(b), the Event of Default under the Declaration may only be
waived by the vote of the Holders of at least the proportion in liquidation
amount of the Common Securities that the relevant Super Majority represents
of the aggregate principal amount of the Junior Subordinated Debentures
outstanding;
11
<PAGE>
PROVIDED FURTHER, that each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to the
Common Securities and its consequences until all Events of Default with respect
to the Capital Securities have been cured, waived or otherwise eliminated, and
until such Events of Default have been so cured, waived or otherwise eliminated,
the Property Trustee shall act solely on behalf of the Holders of the Capital
Securities and only the Holders of the Capital Securities will have the right to
direct the Property Trustee to act in accordance with the terms of the
Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu of
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b),
upon such waiver, any such default shall cease to exist and any Event of Default
with respect to the Common Securities arising therefrom shall be deemed to have
been cured for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or Event of Default with respect to
the Common Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the Property
Trustee at the direction of the Holders of the Capital Securities, constitutes a
waiver of the corresponding Event of Default under this Declaration. The
foregoing provisions of this Section 2.6(c) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act.
SECTION 2.7. EVENT OF DEFAULT; NOTICE.
(a) The Property Trustee shall, within 90 days after the occurrence of an
Event of Default actually known to a Responsible Officer of the Property
Trustee, transmit by mail, first class postage prepaid, to the Holders of the
Securities, notices of all such defaults with respect to the Securities unless
such defaults have been cured before the giving of such notice (the term
"defaults" for the purposes of this Section 2.7(a) being hereby defined to be an
Event of Default as defined in the Indenture, not including any periods of grace
provided for therein and irrespective of the giving of any notice provided
therein); PROVIDED THAT, except for a default in the payment of principal of (or
premium, if any) or interest on any of the Junior Subordinated Debentures or in
the payment of any sinking fund installment established for the Junior
Subordinated Debentures, the Property Trustee shall be protected in withholding
such notice if and so long as a Responsible Officer of the Property Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders of the Securities. Any such notice given pursuant to this Section
2.7(a) shall state that an Event of Default under the Indenture also constitutes
an Event of Default under this Declaration.
(b) The Property Trustee shall not be deemed to have knowledge of any
default except:
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(i) a default under Sections 5.1(a) and 5.1(b) of the Indenture; or
(ii) any default as to which the Property Trustee shall have received
written notice or of which a Responsible Officer of the Property Trustee
charged with the administration of the Declaration shall have actual
knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1. NAME.
The Trust is named "UnionBanCal Finance Trust I" as such name may be
modified from time to time by the Regular Trustees following written notice to
the Holders of Securities. The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the Regular Trustees.
SECTION 3.2. OFFICE.
The address of the principal office of the Trust is c/o UnionBanCal
Corporation, 400 California Street, San Francisco, CA, 94104. On at least ten
Business Days written notice to the Holders of Securities, the Regular Trustees
may designate another principal office.
SECTION 3.3. PURPOSE.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Securities and use the proceeds from such sale to acquire the Junior
Subordinated Debentures, and (b) except as otherwise limited herein, to engage
in only those other activities necessary, or incidental thereto. The Trust shall
not borrow money, issue debt or reinvest proceeds derived from investments,
pledge any of its assets, or otherwise undertake (or permit to be undertaken)
any activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
SECTION 3.4. AUTHORITY.
(a) Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Property Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no person shall be required to inquire into the
authority of the Trustees to bind the Trust. Persons dealing with the
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Trust are entitled to rely conclusively on the power and authority of the
Trustees as set forth in this Declaration.
(b) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.
(c) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.6, PROVIDED, that the registration statement referred to
in Section 3.6, including any amendments thereto, shall, subject to Section
3.4(d), be signed by all of the Regular Trustees; and
(d) A Regular Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purposes of executing any documents which the Regular Trustees have
power and authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 3.5. TITLE TO PROPERTY OF THE TRUST.
Except as provided in Section 3.8 with respect to the Junior Subordinated
Debentures and the Property Trustee Account or as otherwise provided in this
Declaration, legal title to all assets of the Trust shall be vested in the
Trust. The Holders of Securities shall not have legal title to any part of the
assets of the Trust, but shall have an undivided beneficial interest in the
assets of the Trust.
SECTION 3.6. POWERS AND DUTIES OF THE REGULAR TRUSTEES.
The Regular Trustees shall have the exclusive power, duty and authority to
cause the Trust to engage in the following activities:
(a) to issue and sell the Securities in accordance with this Declaration;
PROVIDED, HOWEVER, that the Trust may issue no more than one series of Capital
Securities and no more than one series of Common Securities, and PROVIDED
FURTHER, that there shall be no interests in the Trust other than the
Securities, and the issuance of Securities shall be limited to a simultaneous
issuance of both Capital Securities and Common Securities on the Closing Date
and Option Closing Date, if any;
(b) in connection with the issue and sale of the Securities, at the
direction of the Sponsor, to:
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(i) execute and file with the Commission, at such time as determined
by the Sponsor, a registration statement on Form S-3 prepared by the
Sponsor, including any amendments thereto in relation to the Capital
Securities;
(ii) execute and file an application, prepared by the Sponsor, at such
time as determined by the Sponsor, to the New York Stock Exchange or any
other national stock exchange for listing, or quotation on an interdealer
quotation system, of the Capital Securities;
(iii) execute and deliver letters, documents, or instruments with The
Depository Trust Company relating to the Capital Securities;
(iv) execute and file with the Commission, at such time as determined
by the Sponsor, a registration statement on Form 8-A, including any
amendments thereto, prepared by the Sponsor relating to the registration of
the Capital Securities under Section 12(b) of the Exchange Act;
(v) execute and enter into the Underwriting Agreement and other
related agreements providing for the sale of the Securities;
(vi) execute and file any documents prepared by the Sponsor, or take
any acts as determined by the Sponsor to be necessary in order to qualify
or register all or part of the Capital Securities in any State in which the
Sponsor has determined to qualify or register such Capital Securities for
sale or resale, as the case may be; and
(vii) take all actions and perform such duties as may be required of
the Regular Trustees to open checking, deposit or similar banking accounts
as may be necessary in connection with the issuance and sale of the
Securities;
(c) to acquire the Junior Subordinated Debentures with the proceeds of the
sale of the Capital Securities and the Common Securities; PROVIDED, HOWEVER,
that the Regular Trustees shall cause legal title to the Junior Subordinated
Debentures to be held of record in the name of the Property Trustee for the
benefit of the Holders of the Capital Securities and the Holders of Common
Securities;
(d) to give the Sponsor and the Property Trustee prompt written notice of
the occurrence of a Special Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with respect
to, for the purposes of Section 316 (c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Capital Securities and Holders of Common Securities as
to such actions and applicable record dates;
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(f) to take all actions and perform such duties as may be required of the
Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants, and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by any
Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out any of
the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar, transfer
agent and Paying Agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities of any
notice received from the Debt Issuer of its election (i) to defer payments of
interest on the Junior Subordinated Debentures by extending the interest payment
period under the Indenture or (ii) to shorten the stated maturity of the Junior
Subordinated Debentures pursuant to the Indenture;
(n) to execute all documents or instruments, perform all duties and powers,
and do all things for and on behalf of the Trust in all matters necessary or
incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Capital
Securities or to enable the Trust to effect the purposes for which the Trust was
created;
(p) to take any action, not inconsistent with this Declaration or with
applicable law, that the Regular Trustees determine in their discretion to be
necessary or desirable in carrying out the activities of the Trust as set out in
this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
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(ii) causing the Trust to be classified for United States federal
income tax purposes as a grantor trust; and
(iii) cooperating with the Debt Issuer to ensure that the Junior
Subordinated Debentures will be treated as indebtedness of the Debt Issuer
for United States federal income tax purposes,
PROVIDED THAT such action does not adversely affect the interests of Holders or
vary the terms of the Capital Securities;
(q) to take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to the Trust
to be duly prepared and filed by the Regular Trustees, on behalf of the Trust;
(r) to take all actions and perform such duties as may be required of the
Regular Trustees pursuant to Section 11.2 herein; and
(s) to the extent provided in this Declaration, the winding up of the
affairs of and liquidation of the Trust and the preparation, execution and
filing of the Certificate of Cancellation with the Secretary of State of the
State of Delaware.
The Regular Trustees must exercise the powers set forth in this Section 3.6
in a manner that is consistent with the purposes and functions of the Trust set
out in Section 3.3, and the Regular Trustees shall not take any action that is
inconsistent with the purposes and functions of the Trust set forth in Section
3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of the
powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section 3.6
shall be reimbursed by the Sponsor.
The Trust initially appoints the Property Trustee as transfer agent and
registrar for the Capital Securities.
SECTION 3.7. PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES.
(a) The Trust shall not, and the Trustees (including the Property Trustee)
shall cause the Trust not to engage in any activity other than as required or
authorized by this Declaration. In particular the Trust shall not and the
Trustees (including the Property Trustee) shall cause the Trust not to:
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(i) invest any proceeds received by the Trust from holding the Junior
Subordinated Debentures, but shall distribute all such proceeds to Holders
of Securities pursuant to the terms of this Declaration and of the
Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Junior Subordinated Debentures;
(v) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever except as
permitted by the terms of this Declaration;
(vi) issue any securities or other evidences of beneficial ownership
of, or beneficial interest in, the Trust other than the Securities; or
(vii) other than as provided in this Declaration or Annex I hereto,
(A) direct the time, method and place of exercising any trust or power
conferred upon the Debt Trustee with respect to the Junior Subordinated
Debentures, (B) waive any past default that is not waivable under the
Indenture, (C) exercise any right to rescind or annul any declaration that
the principal of all the Junior Subordinated Debentures shall be due and
payable, or (D) consent to any amendment, modification or termination of
the Indenture or the Junior Subordinated Debentures where such consent
shall be required unless the Trust shall have received an opinion of
counsel to the effect that such modification will not cause more than an
insubstantial risk that (x) the Trust will be deemed an Investment Company
required to be registered under the Investment Company Act or (y) the Trust
will not be classified as a grantor trust for United States federal income
tax purposes.
SECTION 3.8. POWERS AND DUTIES OF THE PROPERTY TRUSTEE.
(a) The legal title to the Junior Subordinated Debentures shall be owned by
and held of record in the name of the Property Trustee (acting in such capacity)
for the benefit of the Trust and the Holders of the Securities. The right, title
and interest of the Property Trustee to the Junior Subordinated Debentures shall
vest automatically in each Person who may hereafter be appointed as Property
Trustee in accordance with Section 5.6. Such vesting and cessation of title
shall be effective whether or not conveyancing documents with regard to the
Junior Subordinated Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and interest
in the Junior Subordinated Debentures to the Regular Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
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(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Property Trustee Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Holders of the
Securities and, upon the receipt of payments of funds made in respect of
the Junior Subordinated Debentures held by the Property Trustee, deposit
such funds into the Property Trustee Account and make payments to the
Holders of the Capital Securities and Holders of the Common Securities from
the Property Trustee Account in accordance with Section 6.1. Funds in the
Property Trustee Account shall be held uninvested until disbursed in
accordance with this Declaration. The Property Trustee Account shall be an
account that is maintained with a banking institution the rating on whose
long-term unsecured indebtedness is at least equal to the rating assigned
to the Capital Securities by a "nationally recognized statistical rating
organization," as that term is defined for purposes of Rule 436(g)(2) under
the Securities Act;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Capital Securities and the
Common Securities to the extent the Junior Subordinated Debentures are
redeemed or mature;
(iii) engage in such ministerial activities as shall be necessary or
appropriate to effect the distribution of the Trust Property in accordance
with the terms of this Declaration; and
(iv) to the extent provided for in this Declaration, take such
ministerial actions necessary in connection with the winding up of the
affairs of and liquidation of the Trust and the preparation, execution and
filing of the Certificate of Cancellation with the Secretary of State of
the State of Delaware.
(d) The Property Trustee shall take all actions and perform such duties as
may be specifically required of the Property Trustee pursuant to the terms of
the Securities.
(e) The Property Trustee shall take any Legal Action which arises out of or
in connection with, an Event of Default of which a Responsible Officer of the
Property Trustee has actual knowledge, or the Property Trustee's duties and
obligations under this Declaration or the Trust Indenture Act; PROVIDED HOWEVER,
that if an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Debt Issuer to pay interest or principal on
the Junior Subordinated Debentures on the date such interest or principal is
otherwise payable (or in the case of redemption, on the redemption date), then a
Holder of Capital Securities may directly institute a proceeding for enforcement
of payment to such Holder of the principal of or interest on the Junior
Subordinated Debentures having a principal amount equal to the aggregate
liquidation amount of the Capital Securities of such Holder (a "Direct Action")
on or after the respective due date specified in the Junior Subordinated
Debentures and PROVIDED, FURTHER, that if
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the Property Trustee fails to enforce its rights under the Junior Subordinated
Debentures, any Holder of Capital Securities may institute a legal proceeding
against any person to enforce the Property Trustee's rights under the Junior
Subordinated Debentures. In connection with such Direct Action, the rights of
the Holders of the Common Securities will be subrogated to the rights of such
Holder of Capital Securities to the extent of any payment made by the Debt
Issuer to such Holder of Capital Securities in such Direct Action. Except as
provided in the preceding sentences, the Holders of Capital Securities will not
be able to exercise directly any other remedy available to the holders of the
Junior Subordinated Debentures.
(f) The Property Trustee shall continue to serve as a Trustee until either:
(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders of Securities pursuant to the terms
of the Securities; or
(ii) a Successor Property Trustee has been appointed and has accepted
that appointment in accordance with Section 5.6.
(g) The Property Trustee shall have the legal power to exercise all of the
rights, powers and privileges of a holder of Junior Subordinated Debentures
under the Indenture and, if an Event of Default actually known to a Responsible
Officer of the Property Trustee occurs and is continuing, the Property Trustee
shall, for the benefit of Holders of the Securities, enforce its rights as
holder of the Junior Subordinated Debentures subject to the rights of the
Holders pursuant to the terms of such Securities.
(h) The Property Trustee may authorize one or more Persons (each, a "Paying
Agent") to pay Distributions, redemption payments or Liquidation Distributions
on behalf of the Trust with respect to all Securities and any such Paying Agent
shall comply with Section 317(b) of the Trust Indenture Act. Any Paying Agent
may be removed by the Property Trustee at any time and a successor Paying Agent
or additional Paying Agents may be appointed at any time by the Property
Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall have none of
the duties, liabilities, powers or the authority of the Regular Trustees set
forth in Section 3.6.
The Property Trustee must exercise the powers set forth in this Section 3.8
in a manner that is consistent with the purposes and functions of the Trust set
out in Section 3.3, and the Property Trustee shall not take any action that is
inconsistent with the purposes and functions of the Trust set out in Section
3.3.
SECTION 3.9. CERTAIN DUTIES AND RESPONSIBILITIES OF THE PROPERTY TRUSTEE.
(a) The Property Trustee, before the occurrence of any Event of Default and
after the curing of all Events of Default that may have occurred, shall
undertake to perform only such
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duties as are specifically set forth in this Declaration and no implied
covenants shall be read into this Declaration against the Property Trustee. In
case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) of which a Responsible Officer of the Property Trustee
has actual knowledge, the Property Trustee shall exercise such of the rights and
powers vested in it by this Declaration, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee shall be
determined solely by the express provisions of this Declaration and
the Property Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Declaration, and no implied covenants or obligations shall be read
into this Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Declaration; but in
the case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the Property
Trustee, the Property Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of
this Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Property 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 not less than a Majority in liquidation
amount of the Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under
this Declaration;
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(iv) no provision of this Declaration shall require the Property
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration or indemnity
reasonably satisfactory to the Property Trustee against such risk or
liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the custody, safe
keeping and physical preservation of the Junior Subordinated Debentures and
the Property Trustee Account shall be to deal with such property in a
similar manner as the Property Trustee deals with similar property for its
own account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration and the Trust
Indenture Act;
(vi) the Property Trustee shall have no duty or liability for or with
respect to the value, genuineness, existence or sufficiency of the Junior
Subordinated Debentures or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree in writing with the
Sponsor. Money held by the Property Trustee need not be segregated from
other funds held by it except in relation to the Property Trustee Account
maintained by the Property Trustee pursuant to Section 3.8(c)(i) and except
to the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for monitoring
the compliance by the Regular Trustees or the Sponsor with their respective
duties under this Declaration, nor shall the Property Trustee be liable for
any default or misconduct of the Regular Trustees or the Sponsor.
SECTION 3.10. CERTAIN RIGHTS OF PROPERTY TRUSTEE.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be fully
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, sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently evidenced by an
Officers' Certificate;
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(iii) whenever in the administration of this Declaration, the Property
Trustee shall deem it desirable that a matter be proved or established
before taking, suffering or omitting any action hereunder, the Property
Trustee (unless other evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Sponsor or the Regular Trustees;
(iv) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel of its selection or
other experts and the advice or opinion of such counsel and experts with
respect to legal matters or advice within the scope of such experts' area
of expertise shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion. Such counsel may be
counsel to the Sponsor or any of its Affiliates, and may include any of its
employees. The Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Declaration from any
court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Declaration at the request or
direction of any Holder, unless such Holder shall have provided to the
Property Trustee security and indemnity, reasonably satisfactory to the
Property Trustee, against the costs, expenses (including attorneys' fees
and expenses and the expenses of the Property Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances as may be
requested by the Property Trustee PROVIDED, that, nothing contained in this
Section 3.10(a)(vi) shall be taken to (a) require the Holders of Capital
Securities to offer such indemnity in the event such Holders direct the
Property Trustee to take any action it is empowered to take under this
Declaration following an Event of Default or (b) relieve the Property
Trustee, upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Declaration;
(vii) the Property 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 Property Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit;
(viii) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, custodians,
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nominees or attorneys and the Property 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;
(ix) any action taken by the Property Trustee or its agents hereunder
shall bind the Trust and the Holders of the Securities, and the signature
of the Property Trustee or its agents alone shall be sufficient and
effective to perform any such action and no third party shall be required
to inquire as to the authority of the Property Trustee to so act or as to
its compliance with any of the terms and provisions of this Declaration,
both of which shall be conclusively evidenced by the Property Trustee's or
its agent's taking such action;
(x) whenever in the administration of this Declaration the Property
Trustee shall deem it desirable to receive written instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request written instructions from
the Holders of the Securities which instructions may only be given by the
Holders of the same proportion in liquidation amount of the Securities as
would be entitled to direct the Property Trustee under the terms of the
Securities in respect of such remedy, right or action, (ii) may refrain
from enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in conclusively
relying on or acting in accordance with such instructions;
(xi) except as otherwise expressly provided by this Declaration, the
Property Trustee shall not be under any obligation to take any action that
is discretionary under the provisions of this Declaration; and
(xii) the Property Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Declaration.
(b) No provision of this Declaration shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
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SECTION 3.11. DELAWARE TRUSTEE.
Notwithstanding any other provision of this Declaration other than Section
5.2, the Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Regular Trustees, the Property Trustee or the Trustees generally (except as may
be required under the Business Trust Act) described in this Declaration. Except
as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for the
sole and limited purpose of fulfilling the requirements of Section 3807(a) of
the Business Trust Act.
SECTION 3.12. EXECUTION OF DOCUMENTS.
Except as otherwise required by the Business Trust Act, any Regular Trustee
is authorized to execute on behalf of the Trust any documents that the Regular
Trustees have the power and authority to execute pursuant to Section 3.6;
PROVIDED THAT, the registration statement referred to in Section 3.6(b)(i),
including any amendments thereto, shall, subject to Section 3.4(d), be signed by
all of the Regular Trustees.
SECTION 3.13. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14. DURATION OF TRUST.
The Trust, unless terminated pursuant to the provisions of Article VIII
hereof, shall have existence for thirty-five (35) years from February 19, 1999.
SECTION 3.15. MERGERS.
(a) The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any corporation or other body,
except as described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees and without the consent of
the Holders of the Securities, the Delaware Trustee or the Property Trustee,
consolidate, amalgamate, merge with or into, or be replaced by a trust organized
as such under the laws of any State; PROVIDED that
(i) such successor entity (the "Successor Entity") either:
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(A) expressly assumes all of the obligations of the Trust under
the Securities; or
(B) substitutes for the Capital Securities other securities
having substantially the same terms as the Capital Securities (the
"Successor Securities") so long as the Successor Securities rank the
same as the Capital Securities rank with respect to Distributions and
payments upon liquidation, redemption and otherwise;
(ii) the Capital Securities or any Successor Securities are listed, or
any Successor Securities will be listed upon notification of issuance, on
any national securities exchange or another organization on which the
Capital Securities are then listed;
(iii) the Debt Issuer expressly acknowledges a trustee of the
Successor Entity that possesses the same powers and duties as the Property
Trustee as the Holder of the Junior Subordinated Debentures;
(iv) such merger, consolidation, amalgamation or replacement does not
cause the Capital Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization;
(v) such merger, consolidation, amalgamation or replacement does not
adversely affect the rights, preferences and privileges of the Holders of
the Securities (including any Successor Securities) in any material respect
(other than with respect to any dilution of the Holders' interest in the
Successor Entity);
(vi) such Successor Entity has a purpose identical to that of the
Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of nationally recognized
independent counsel to the Trust experienced in such matters to the effect
that:
(A) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of the
Holders of the Securities (including any Successor Securities) in any
material respect (other than with respect to any dilution of the
Holders' interest in the Successor Entity); and
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will be
required to register as an Investment Company; and
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(viii) the Sponsor guarantees the obligations of the Successor Entity
under the Successor Securities at least to the extent provided by the
Securities Guarantees.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with the
consent of Holders of 100% in liquidation amount of the Securities, consolidate,
amalgamate, merge with or into, or be replaced by any other entity or permit any
other entity to consolidate, amalgamate, merge with or into, or replace it, if
such consolidation, amalgamation, merger or replacement would cause the Trust or
the Successor Entity to be classified as other than a grantor trust for United
States federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1. SPONSOR'S PURCHASE OF COMMON SECURITIES.
On the Closing Date the Sponsor will purchase all of the Common Securities
issued by the Trust, in an amount at least equal to 3% of the capital of the
Trust, at the same time as the Capital Securities are sold.
SECTION 4.2. RESPONSIBILITIES OF THE SPONSOR.
In connection with the issue and sale of the Capital Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) prepare for filing by the Trust with the Commission a registration
statement on Form S-3 in relation to the Securities, including any amendments
thereto;
(b) prepare for execution and filing by the Trust of an application,
prepared by the Sponsor, at such time as determined by the Sponsor, to the New
York Stock Exchange or any other national stock exchange for listing, or
quotation on an interdealer quotation system, of the Capital Securities;
(c) prepare for execution and filing by the Trust of documents, or
instruments to be delivered to The Depository Trust Company relating to the
Capital Securities;
(d) prepare for execution and filing by the Trust of a registration
statement on Form 8-A, including any amendments thereto, prepared by the Sponsor
relating to the registration of the Capital Securities under Section 12(b) of
the Exchange Act;
(e) to determine the States in which to take appropriate action to qualify
or register for sale all or part of the Capital Securities and to do any and all
such acts, other than actions
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which must be taken by the Trust, and advise the Trust of actions it must take,
and prepare for execution and filing any documents to be executed and filed by
the Trust, as the Sponsor deems necessary or advisable in order to comply with
the applicable laws of any such States; and
(f) to negotiate the terms of the Underwriting Agreement providing for the
sale of the Capital Securities.
ARTICLE V
TRUSTEES
SECTION 5.1. NUMBER OF TRUSTEES.
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the Sponsor may, by
written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of a majority in liquidation
amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities; PROVIDED, HOWEVER, that the number of Trustees shall in
no event be less than two (2); PROVIDED FURTHER, that (i) one Trustee, in the
case of a natural person, shall be a person who is a resident of the State of
Delaware or that, if not a natural person, is an entity which has its principal
place of business in the State of Delaware (the "Delaware Trustee"); (ii) there
shall be at least one Trustee who is any employee of, or is affiliated with the
Sponsor (a "Regular Trustee"); and (iii) one Trustee shall be the Property
Trustee, and such Trustee may also serve as Delaware Trustee if it meets the
applicable requirements.
SECTION 5.2. DELAWARE TRUSTEE.
If required by the Business Trust Act, one Trustee shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law;
PROVIDED THAT, if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application.
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The Initial Delaware Trustee shall be: First Chicago Delaware Inc.
SECTION 5.3. PROPERTY TRUSTEE; ELIGIBILITY.
(a) There shall at all times be one Trustee which shall act as Property
Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by federal, state,
territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred to above,
then for the purposes of this Section 5.3(a)(ii), 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.
(b) If at any time the Property Trustee shall cease to be eligible to so
act under Section 5.3(a), the Property Trustee shall immediately resign in the
manner and with the effect set forth in Section 5.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Property
Trustee and the Holder of the Common Securities (as if it were the obligor
referred to in Section 310(b) of the Trust Indenture Act) shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
(d) The Guarantee shall be deemed to be specifically described in this
Declaration for purposes of clause (i) of the first provision contained in
Section 310(b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be: The First National Bank of
Chicago.
SECTION 5.4. CERTAIN QUALIFICATIONS OF REGULAR TRUSTEES AND DELAWARE
TRUSTEE GENERALLY.
Each Regular Trustee and the Delaware Trustee (unless the Property Trustee
also acts as Delaware Trustee) shall be either a natural person who is at least
21 years of age or a legal entity that shall act through one or more Authorized
Officers.
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SECTION 5.5. REGULAR TRUSTEES.
The initial Regular Trustees shall be:
David A. Anderson
David I. Matson
John H. McGuckin, Jr.
(a) Except as expressly set forth in this Declaration and except if a
meeting of the Regular Trustees is called with respect to any matter over which
the Regular Trustees have power to act, any power of the Regular Trustees may be
exercised by, or with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.6, PROVIDED, THAT, the registration statement referred to
in Section 3.6, including any amendments thereto, shall, subject to Section
3.4(d), be signed by all of the Regular Trustees.
SECTION 5.6. APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.
(a) Subject to Section 5.6(b), Trustees may be appointed or removed without
cause at any time:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the Holders of a
Majority in liquidation amount of the Common Securities voting as a class
at a meeting of the Holders of the Common Securities.
(b) (i) The Trustee that acts as Property Trustee shall not be removed in
accordance with Section 5.6(a) until a Successor Property Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Property Trustee and delivered to the Regular Trustees and the
Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be removed in
accordance with Section 5.6(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware
Trustee and delivered to the Regular Trustees and the Sponsor.
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(c) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until his death, removal or resignation. Any
Trustee may resign from office (without need for prior or subsequent accounting)
by an instrument in writing signed by the Trustee and delivered to the Sponsor
and the Trust, which resignation shall take effect upon such delivery or upon
such later date as is specified therein; PROVIDED, HOWEVER, that:
(i) No such resignation of the Trustee that acts as the Property
Trustee shall be effective:
(A) until a Successor Property Trustee has been appointed and has
accepted such appointment by instrument executed by such Successor
Property Trustee and delivered to the Trust, the Sponsor and the
resigning Property Trustee; or
(B) until the assets of the Trust have been completely liquidated
and the proceeds thereof distributed to the holders of the Securities;
and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust, the Sponsor and the
resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best efforts to
promptly appoint a Successor Delaware Trustee or Successor Property Trustee as
the case may be if the Property Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 5.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee shall
have been appointed and accepted appointment as provided in this Section 5.6
within 60 days after delivery of an instrument of resignation or removal, the
Property Trustee or Delaware Trustee resigning or being removed, as applicable,
may petition any court of competent jurisdiction for appointment of a Successor
Property Trustee or Successor Delaware Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper and prescribe, appoint a
Successor Property Trustee or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the acts or
omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
SECTION 5.7. VACANCIES AMONG TRUSTEES.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular
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Trustees or, if there are more than two, a majority of the Regular Trustees
shall be conclusive evidence of the existence of such vacancy. The vacancy shall
be filled with a Trustee appointed in accordance with Section 5.6.
SECTION 5.8. EFFECT OF VACANCIES.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to dissolve, terminate or annul the Trust. Whenever a vacancy in the
number of Regular Trustees shall occur, until such vacancy is filled by the
appointment of a Regular Trustee in accordance with Section 5.6, the Regular
Trustees in office, regardless of their number, shall have all the powers
granted to the Regular Trustees and shall discharge all the duties imposed upon
the Regular Trustees by this Declaration.
SECTION 5.9. MEETINGS.
If there is more than one Regular Trustee, meetings of the Regular Trustees
shall be held from time to time upon the call of any Regular Trustee. Regular
meetings of the Regular Trustees may be held at a time and place fixed by
resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 48
hours before such meeting. Notice of any telephonic meetings of the Regular
Trustees or any committee thereof shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 24 hours before a meeting. Notices shall contain a brief statement of
the time, place and anticipated purposes of the meeting. The presence (whether
in person or by telephone) of a Regular Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Regular Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Declaration, any action of the Regular Trustees may
be taken at a meeting by vote of a majority of the Regular Trustees present
(whether in person or by telephone) and eligible to vote with respect to such
matter, provided that a Quorum is present, or without a meeting by the unanimous
written consent of the Regular Trustees. In the event there is only one Regular
Trustee, any and all action of such Regular Trustee shall be evidenced by a
written consent of such Regular Trustee.
SECTION 5.10. DELEGATION OF POWER.
A Regular Trustee may, by power of attorney consistent with applicable law,
delegate to any other natural person over the age of 21 his or her power for the
purposes of executing any documents contemplated in Section 3.6, including any
registration statement or amendment thereto filed with the Commission, or making
any other governmental filing.
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The Regular Trustees shall have power to delegate from time to time to such
of their number or to officers of the Trust the doing of such things and the
execution of such instruments either in the name of the Trust or the names of
the Regular Trustees or otherwise as the Regular Trustees may deem expedient, to
the extent such delegation is not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.
SECTION 5.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Property Trustee or the Delaware Trustee, as
the case may be, may be merged or converted or with which either may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Property Trustee or the Delaware Trustee, as the case
may be, shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Property Trustee or the Delaware
Trustee, as the case may be, shall be the successor of the Property Trustee or
the Delaware Trustee, as the case may be, 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.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1. DISTRIBUTIONS.
Holders of Securities shall receive Distributions (as defined herein) in
accordance with the applicable terms of the relevant Holder's Securities.
Distributions shall be made on the Capital Securities and the Common Securities
in accordance with the preferences set forth in their respective terms. If and
to the extent that the Debt Issuer makes a payment of interest (including
Compound Interest (as defined in the Indenture, if applicable) and Additional
Interest (as defined in the Indenture, if applicable)), premium and/or principal
on the Junior Subordinated Debentures held by the Property Trustee (the amount
of any such payment being a "Payment Amount"), the Property Trustee shall and is
directed, to the extent funds are available for that purpose, to make a
distribution (a "Distribution") of the Payment Amount to Holders.
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ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1. GENERAL PROVISIONS REGARDING SECURITIES.
(a) The Regular Trustees shall on behalf of the Trust issue one class of
preferred securities representing undivided beneficial interests in the assets
of the Trust having such terms as are set forth in Annex I (the "Capital
Securities") and one class of common securities representing undivided
beneficial interests in the assets of the Trust having such terms as are set
forth in Annex I (the "Common Securities"). The Trust shall issue no securities
or other interests in the assets of the Trust other than the Capital Securities
and the Common Securities.
(b) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this Declaration, the
Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable.
(d) Every Person, by virtue of having become a Holder or a Capital Security
Beneficial Owner in accordance with the terms of this Declaration, shall be
deemed to have expressly assented and agreed to the terms of and shall be bound
by this Declaration.
SECTION 7.2. SUBORDINATION OF COMMON SECURITIES.
Payment of Distributions on, and the redemption price of the Capital
Securities and Common Securities, as applicable, will be made PRO RATA based on
the liquidation amount of such Capital Securities and Common Securities.
However, if on any date on which a Distribution is to be made, or any Redemption
Date, an Event of Default has occurred and is continuing, no payment of any
Distribution on, or Redemption Price of, any of the Common Securities, and no
other payment on account of the redemption, liquidation or other acquisition of
such common Securities shall be made unless payment in full in cash of all
accumulated and unpaid Distribution on all the outstanding Capital Securities
for all Distribution periods terminating on or prior thereto, or in the case of
payment of the Redemption price the full amount of such Redemption Price on all
the outstanding Capital Securities then called for redemption, shall have ben
made or provided for, and all funds available to the Property Trustee shall
first be applied to the payment in full in cash of all Distributions on, or the
Redemption Price of, the Capital Securities then due and payable.
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SECTION 7.3. EXECUTION AND AUTHENTICATION.
(a) The Certificates shall be signed on behalf of the Trust by a Regular
Trustee. In case any Regular Trustee of the Trust who shall have signed any of
the Securities shall cease to be such Regular Trustee before the Certificates so
signed shall be delivered by the Trust, such Certificates nevertheless may be
delivered as though the person who signed such Certificates had not ceased to be
such Regular Trustee; and any Certificate may be signed on behalf of the Trust
by such persons who, at the actual date of execution of such Security, shall be
the Regular Trustees of the Trust, although at the date of the execution and
delivery of the Declaration any such person was not such a Regular Trustee.
(b) One Regular Trustee shall sign the Capital Securities for the Trust by
manual or facsimile signature. Unless otherwise determined by the Trust, such
signature shall, in the case of Common Securities, be a manual signature.
A Capital Security shall not be valid until authenticated by the manual
signature of an authorized signatory of the Property Trustee. The signature
shall be conclusive evidence that the Capital Security has been authenticated
under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee, the
Property Trustee shall authenticate the Capital Securities for original issue.
The Property Trustee may appoint an authenticating agent acceptable to the
Trust to authenticate Capital Securities. An authenticating agent may
authenticate Capital Securities whenever the Property Trustee may do so. Each
reference in this Declaration to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Property Trustee to deal with the Trust or an Affiliate.
SECTION 7.4. FORM AND DATING.
The Capital Securities and the Property Trustee's certificate of
authentication shall be substantially in the form of Exhibit A-1 and the Common
Securities shall be substantially in the form of Exhibit A-2, each of which is
hereby incorporated in and expressly made a part of this Declaration.
Certificates may be printed, lithographed or engraved or may be produced in any
other manner as is reasonably acceptable to the Regular Trustees, as evidenced
by their execution thereof. The Securities may have letters, numbers, notations,
other marks of identification or designation or other changes or additions
thereto or deletions therefrom as may be required by ordinary usage, custom or
practice and such legends or endorsements required by law, stock exchange rule
and agreements to which the Trust is subject, if any (provided that any such
notation, legend or endorsement is in a form acceptable to the Trust). The Trust
at the direction of the Sponsor shall furnish any such legend not contained in
Exhibit A-1 to the Property Trustee in writing. Each Capital Security
Certificate shall be dated the date of its authentication. The terms and
provisions of the Securities set forth in Annex I and the forms of Securities
set forth in
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Exhibits A-1 and A-2 are part of the terms of this Declaration and, to the
extent applicable, the Property Trustee and the Sponsor, by their execution and
delivery of this Declaration, expressly agree to such terms and provisions and
to be bound thereby.
SECTION 7.5. PAYING AGENT. The Trust shall maintain in the Borough of
Manhattan, City of New York, State of New York, an office or agency where
Capital Securities not held in book-entry only form may be presented for payment
("Paying Agent"). The Trust may appoint the Paying Agent and may appoint one or
more additional paying agents in such other locations as it shall determine. The
term "Paying Agent" includes any additional paying agent. The Trust may change
any Paying Agent without prior notice to any Holder. The Trust shall notify the
Property Trustee in writing of the name and address of any Agent not a party to
this Declaration. If the Trust fails to appoint or maintain another entity as
Paying Agent, the Property Trustee shall act as such. The Trust or any of its
Affiliates may act as Paying Agent. The Trust shall act as Paying Agent for the
Common Securities.
The Trust initially appoints The First National Bank of Chicago, 14 Wall
Street, 8th Floor, New York, NY 10005, Attention: Corporate Trust Administration
as Paying Agent for the Capital Securities.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1. TERMINATION OF TRUST.
(a) The Trust shall terminate:
(i) upon the bankruptcy of the Sponsor or the Holder of the Common
Securities;
(ii) upon the filing of a certificate of dissolution or its equivalent
with respect to the Sponsor or the Holder of the Common Securities; the
filing of a certificate of cancellation with respect to the Trust after
having obtained the consent of at least a Majority in liquidation amount of
the Securities voting together as a single class to file such certificate
of cancellation; or the revocation of the Sponsor's charter or the charter
of the Holder of the Common Securities and the expiration of 90 days after
the date of revocation without a reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor, the Trust or the Holder of the Common Securities;
(iv) when all of the Securities shall have been called for redemption
and the
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amounts necessary for redemption thereof shall have been paid to the
Holders in accordance with the terms of the Securities;
(v) upon the occurrence and continuation of a Special Event pursuant
to which the Trust shall have been dissolved in accordance with the terms
of the Securities and all of the Junior Subordinated Debentures held by the
Property Trustee shall have been distributed to the Holders of Securities
in exchange for all of the Securities;
(vi) upon the written direction to the Property Trustee from the
Holder of the Common Securities at any time to terminate the Trust and,
after satisfaction of liabilities to creditors of the Trust as provided by
applicable law, the distribution of Junior Subordinated Debentures to
Holders in exchange for the Securities within 90 days after notice, subject
to the Regular Trustees' receipt of an opinion of nationally recognized
independent counsel experienced in such matters to the effect that the
Holders of the Capital Securities and the Holders of the Common Securities
will not recognize any income, gain or loss for United States federal
income tax purposes as a result of the dissolution of the Trust and such
distribution to Holders;
(vii) [Intentionally Omitted];
(viii) the expiration of the term of the Trust on February 19, 2034;
or
(ix) before the issuance of any Securities, with the consent of all of
the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event referred to
in Section 8.1(a), the Trustees shall file a certificate of cancellation with
the Secretary of State of the State of Delaware.
(c) The provisions of Sections 3.9 and 3.10 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1. TRANSFER OF SECURITIES.
(a) Securities may only be transferred, in whole or in part, in accordance
with the terms and conditions set forth in this Declaration and in the terms of
the Securities. Any transfer or purported transfer of any Security not made in
accordance with this Declaration shall be null and void.
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(b) Subject to this Article IX, Capital Securities shall be transferable.
(c) Subject to this Article IX, the Sponsor and any Related Party may only
transfer Common Securities to the Sponsor or a Related Party of the Sponsor;
PROVIDED THAT, any such transfer shall not violate the Securities Act and is
subject to the condition precedent that the transferor obtain the written
opinion of nationally recognized independent counsel experienced in such matters
that such transfer would not cause more than an insubstantial risk that:
(i) the Trust would not be classified for United States federal income
tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company required to register
under the Investment Company Act or the transferee would become an
Investment Company required to register under the Investment Company Act.
(d) Each Common Security that bears or is required to bear the legend set
forth in this Section 9.1(d) shall be subject to the restrictions on transfer
provided in the legend set forth in this Section 9.1(d), unless such
restrictions on transfer shall be waived by the written consent of the Regular
Trustees, and the Holder of each such Common Security, by such securityholder's
acceptance thereof, agrees to be bound by such restrictions on transfer. As used
in this Section 9.1(d) and in Section 9.1(e), the term "transfer" encompasses
any sale, pledge, transfer or other disposition of any such Common Security.
Any certificate evidencing a Common Security shall bear a legend in
substantially the following form, unless otherwise agreed by the Regular
Trustees (with written notice thereof to the Property Trustee):
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD UNLESS SUCH OFFER AND SALE ARE
REGISTERED UNDER OR ARE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT.
THE TRANSFER OF THE SECURITY EVIDENCED HEREBY IS ALSO SUBJECT TO THE
RESTRICTIONS SET FORTH IN THE DECLARATION REFERRED TO BELOW.
SECTION 9.2. TRANSFER OF CERTIFICATES.
The Regular Trustees shall provide for the registration of Certificates and
of transfers of Certificates, which will be effected without charge, but only
upon payment in respect of any tax or other government charges that may be
imposed in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new Certificates to be
issued in the name of the designated transferee or transferees. Every
Certificate
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surrendered for registration of transfer shall be accompanied by a written
instrument of transfer in form satisfactory to the Regular Trustees duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Each Certificate surrendered for registration of transfer shall be canceled by
the Regular Trustees. A transferee of a Certificate shall be entitled to the
rights and subject to the obligations of a Holder hereunder upon the receipt by
such transferee of a Certificate. By acceptance of a Certificate, each
transferee shall be deemed to have agreed to be bound by this Declaration.
SECTION 9.3. DEEMED SECURITY HOLDERS.
The Trustees may treat the Person in whose name any Certificate shall be
registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
SECTION 9.4. BOOK ENTRY INTERESTS.
(a) So long as Capital Securities are eligible for book-entry settlement
with the Clearing Agency or unless otherwise required by law, all Capital
Securities that are so eligible may be represented by one or more fully
registered Capital Security Certificates (each, a "Global Certificate") in
global form to be delivered to DTC, the initial Clearing Agency, by, or on
behalf of, the Trust. Such Global Certificates shall initially be registered on
the books and records of the Trust in the name of Cede & Co., the nominee of
DTC, and no Capital Security Beneficial Owner will receive a definitive Capital
Security Certificate representing such Capital Security Beneficial Owner's
interests in such Global Certificates, except as provided in Section 9.7 below.
The transfer and exchange of beneficial interests in any such Security in global
form shall be effected through the Clearing Agency in accordance with this
Declaration and the procedures of the Clearing Agency therefor.
(b) Except as provided below, beneficial owners of a Capital Security in
global form shall not be entitled to have certificates registered in their
names, will not receive or be entitled to receive physical delivery of
certificates in definitive form and will not be considered Holders of such
Capital Security in global form.
(c) Any Global Certificate may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent with the
provisions of this Declaration as may be required by the Clearing Agency, by any
national securities exchange or by the National Association of Securities
Dealers, Inc. as may be required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any securities
exchange or interdealer quotation system upon which the Capital Securities may
be listed or
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traded or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Capital Securities
are subject.
(d) Unless and until definitive, fully registered Capital Security
Certificates (the "Definitive Capital Security Certificates") have been issued
to the Capital Security Beneficial Owners of a Capital Security in global form
pursuant to Section 9.7:
(i) the provisions of this Section 9.4 shall be in full force and
effect with respect to such Capital Securities;
(ii) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the payment
of Distributions on the Global Certificates and receiving approvals, votes
or consents hereunder) as the Holder of such Capital Securities and the
sole holder of the Global Certificates and shall have no obligation to the
Capital Security Beneficial Owners of such Capital Securities;
(iii) to the extent that the provisions of this Section 9.4 conflict
with any other provisions of this Declaration, the provisions of this
Section 9.4 shall control; and
(iv) the rights of the Capital Security Beneficial Owners of Capital
Securities in global form shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements
between such Capital Security Beneficial Owners and the Clearing Agency
and/or the Clearing Agency Participants. The Clearing Agency will make
book-entry transfers among Clearing Agency Participants and receive and
transmit payments of Distributions on the Global Certificates to such
Clearing Agency Participants. DTC will make book entry transfers among the
Clearing Agency Participants PROVIDED, that solely for the purposes of
determining whether the Holders of the requisite amount of Capital
Securities have voted on any matter provided for in this Declaration, so
long as Definitive Capital Security Certificates have not been issued, the
Trustees may conclusively rely on, and shall be protected in relying on,
any written instrument (including a proxy) delivered to the Trustees by the
Clearing Agency setting forth the Capital Securities Beneficial Owners'
votes or assigning the right to vote on any matter to any other Persons
either in whole or in part.
(e) Notwithstanding any other provisions of this Declaration (other than
the provisions set forth in this Section 9.4(e)), a Capital Security in global
form may not be transferred as a whole except by the Clearing Agency to a
nominee of the Clearing Agency or by a nominee of the Clearing Agency to the
Clearing Agency or another nominee to a successor Clearing Agency or a nominee
of such successor Clearing Agency.
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SECTION 9.5. NOTICES TO CLEARING AGENCY.
Whenever a notice or other communication to the Capital Security Holders is
required under this Declaration, unless and until Definitive Capital Security
Certificates shall have been issued to the Capital Security Beneficial Owners
pursuant to Section 9.7, the Regular Trustees shall give all such notices and
communications specified herein to be given to the Capital Security Holders to
the Clearing Agency, and shall have no notice obligations to the Capital
Security Beneficial Owners.
SECTION 9.6. APPOINTMENT OF SUCCESSOR CLEARING AGENCY.
If any Clearing Agency notifies the Trust that it is unwilling or unable to
continue its services as securities depositary with respect to the Capital
Securities, if such Clearing Agency ceases to perform such services, or if at
any time such Clearing Agency ceases to be a clearing agency registered as such
under the Exchange Act when such Clearing Agency is required to be so registered
to act as such depositary, then the Regular Trustees may, in their sole
discretion, appoint a successor Clearing Agency with respect to such Capital
Securities.
SECTION 9.7. DEFINITIVE CAPITAL SECURITY CERTIFICATES UNDER CERTAIN
CIRCUMSTANCES.
If:
(a) a Clearing Agency notifies the Trust that it is unwilling or unable to
continue its services as securities depositary with respect to the Capital
Securities, if at any time such Clearing Agency ceases to be a clearing agency
registered as such under the Exchange Act when such Clearing Agency is required
to be so registered to act as such depositary and no successor Clearing Agency
shall have been appointed pursuant to Section 9.6 within 90 days of such
notification;
(b) the Regular Trustees (with the consent of the Sponsor), in their sole
discretion determine that the Capital Securities in global form shall be
exchanged for certificated Capital Securities; or
(c) there shall have occurred and be continuing an Event of Default;
then:
(d) Definitive Capital Security Certificates shall be prepared by the
Regular Trustees on behalf of the Trust with respect to such Capital Securities;
and
(e) upon surrender of the Global Certificates by the Clearing Agency,
accompanied by registration instructions, the Regular Trustees shall cause
Definitive Capital Security Certificates to be delivered to Capital Security
Beneficial Owners of such Capital Securities in
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accordance with the instructions of the Clearing Agency. Neither the Trustees
nor the Trust shall be liable for any delay in delivery of such instructions and
each of them may conclusively rely on and shall be protected in relying on, said
instructions of the Clearing Agency. The Definitive Capital Security
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Regular Trustees, as
evidenced by their execution thereof, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements as
the Regular Trustees may deem appropriate, or as may be required to comply with
any law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which Capital Securities may be listed, or
to conform to usage.
At such time as all interests in a Capital Security in global form have
been redeemed, exchanged, repurchased or canceled, such Capital Security in
global form shall be, upon receipt thereof, canceled by the Trust in accordance
with standing procedures and instructions of the Clearing Agency.
SECTION 9.8. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Property Trustee or the Regular
Trustees such security or indemnity as may be required by them to keep each of
them harmless,
then:
in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, the Property Trustee or any Regular Trustee on behalf of
the Trust shall execute and deliver, in exchange for, or in lieu of, any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under this
Section 9.8, the Property Trustee or the Regular Trustees may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive evidence of an ownership
interest in the relevant Securities, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
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ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS
SECTION 10.1. LIABILITY.
(a) Except as expressly set forth in this Declaration, the Securities
Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Securities
which shall be made solely from assets of the Trust; or
(ii) required to pay to the Trust or to any Holder of Securities any
deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for all of the
debts and obligations of the Trust (other than with respect to the Securities)
to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders of
the Capital Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
SECTION 10.2. EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence (or, in the
case of the Property Trustee, except as otherwise set forth in Section 3.9) or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Trust and upon such information, opinions, reports or
statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
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and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
SECTION 10.3. FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between any
Covered Persons; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act in a manner
that is, or provides terms that are, fair and reasonable to the Trust or
any Holder of Securities, the Indemnified Person shall resolve such
conflict of interest, take such action or provide such terms, considering
in each case the relative interest of each party (including its own
interest) to such conflict, agreement, transaction or situation and the
benefits and burdens relating to such interests, any customary or accepted
industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified
Person, the resolution, action or term so made, taken or provided by the
Indemnified Person shall not constitute a breach of this Declaration or any
other agreement contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests and factors
as it desires, including its own interests, and shall have no duty or
obligation to give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or
by applicable law.
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SECTION 10.4. INDEMNIFICATION.
(a) (i) the Debt Issuer shall indemnify, to the full extent permitted by
law, any Company Indemnified Person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Trust) by reason of the fact that
he is or was a Company Indemnified Person against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of
NOLO CONTENDERE or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the
best interests of the Trust, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was
unlawful.
(ii) The Debt Issuer shall indemnify, to the full extent permitted by
law, any Company Indemnified Person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit
by or in the right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified Person against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter as
to which such Company Indemnified Person shall have been adjudged to be
liable to the Trust unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such
Court of Chancery or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 10.4(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
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(iv) Any indemnification under paragraphs (i) and (ii) of this Section
10.4(a) (unless ordered by a court) shall be made by the Debt Issuer only
as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) or (ii). Such determination shall be made (1) by
the Regular Trustees by a majority vote of a quorum consisting of such
Regular Trustees who were not parties to such action, suit or proceeding,
(2) if such a quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested Regular Trustees so directs, by independent legal counsel
in a written opinion, or (3) by the Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 10.4(a) shall be paid by the Debt Issuer in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Company Indemnified Person to repay
such amount if it shall ultimately be determined that he is not entitled to
be indemnified by the Debt Issuer as authorized in this Section 10.4(a).
Notwithstanding the foregoing, no advance shall be made by the Debt Issuer
if a determination is reasonably and promptly made (i) by the Regular
Trustees by a majority vote of a quorum of disinterested Regular Trustees,
(ii) if such a quorum is not obtainable, or, even if obtainable, if a
quorum of disinterested Regular Trustees so directs, by independent legal
counsel in a written opinion or (iii) by the Common Security Holder of the
Trust, that, based upon the facts known to the Regular Trustees, counsel or
the Common Security Holder at the time such determination is made, such
Company Indemnified Person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the
Trust, or, with respect to any criminal proceeding, that such Company
Indemnified Person believed or had reasonable cause to believe his conduct
was unlawful. In no event shall any advance be made in instances where the
Regular Trustees, independent legal counsel or Common Security Holder
reasonably determine that such person deliberately breached his duty to the
Trust or its Common or Capital Security Holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 10.4(a) shall not
be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of shareholders or disinterested directors of the Debt
Issuer or Capital Security Holders of the Trust or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section
10.4(a) shall be deemed to be provided by a
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contract between the Debt Issuer and each Company Indemnified Person who
serves in such capacity at any time while this Section 10.4(a) is in
effect. Any repeal or modification of this Section 10.4(a) shall not affect
any rights or obligations then existing.
(vii) The Debt Issuer or the Trust may purchase and maintain insurance
on behalf of any person who is or was a Company Indemnified Person against
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Debt
Issuer would have the power to indemnify him against such liability under
the provisions of this Section 10.4(a)
(viii) For purposes of this Section 10.4(a), references to "the Trust"
shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in
a consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall stand in the same
position under the provisions of this Section 10.4(a) with respect to the
resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 10.4(a) shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(b) The Debt Issuer agrees to indemnify the (i) Property Trustee, (ii) the
Delaware Trustee, (iii) any Affiliate of the Property Trustee and the Delaware
Trustee, and (iv) any officers, directors, shareholders, members, partners,
employees, representatives, custodians, nominees or agents of the Property
Trustee and the Delaware Trustee (each of the Persons in (i) through (iv) being
referred to as a "Fiduciary Indemnified Person") for, and to hold each Fiduciary
Indemnified Person 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 or the trust or trusts hereunder,
including the costs and expenses (including reasonable legal fees and expenses)
of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The provisions of this Section 10.4(b) shall survive the satisfaction
and discharge of this Declaration or the resignation or removal of the Property
Trustee or the Delaware Trustee, as the case may be.
SECTION 10.5. OUTSIDE BUSINESS.
Any Covered Person, the Sponsor, the Delaware Trustee and the Property
Trustee may engage in or possess an interest in other business ventures of any
nature or description,
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independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the Holders of Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee, or the Property
Trustee shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any Covered Person,
shall have the right to take for its own account (individually or as a partner
or fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee
or agent for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1. FISCAL YEAR.
The fiscal year ("Fiscal Year") of the Trust shall be the same as the
fiscal year of the Sponsor, unless another fiscal year is required by the Code
or Treasury regulations promulgated thereunder.
SECTION 11.2. CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust, the Regular Trustees
shall keep, or cause to be kept, full books, records and supporting documents,
which shall reflect in detail, each transaction of the Trust. The books of
account shall be maintained on the accrual method of accounting in compliance
with generally accepted accounting principles, consistently applied. The Trust
shall use the accrual method of accounting for the United States federal income
tax purposes. The books of account and the records of the Trust shall be
examined by and reported upon as of the end of each Fiscal Year of the Trust by
a firm of independent certified public accountants selected by the Regular
Trustees.
(b) The Sponsor shall cause to be prepared and delivered to each of the
Holders of Securities, within 90 days after the end of each Fiscal Year of the
Sponsor, annual financial statements of the Sponsor, including a balance sheet
of the Sponsor as of the end of such Fiscal Year, and the related statements of
income or loss.
(c) The Regular Trustees shall cause to be duly prepared and delivered to
each of the Holders of Securities, any annual United States federal income tax
information statement,
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required by the Code, containing such information with regard to the Securities
held by each Holder as is required by the Code and the Treasury Regulations.
Notwithstanding any right under the Code to deliver any such statement at a
later date, the Regular Trustees shall endeavor to deliver all such statements
within 30 days after the end of each Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed with the
appropriate taxing authority, an annual United States federal income tax return,
on a Form 1041 or such other form required by United States federal income tax
law, and any other annual income tax returns required to be filed by the Regular
Trustees on behalf of the Trust with any state or local taxing authority.
SECTION 11.3. BANKING.
The Trust shall maintain one or more bank accounts in the name and for the
sole benefit of the Trust; PROVIDED, HOWEVER, that all payments of funds in
respect of the Junior Subordinated Debentures held by the Property Trustee shall
be made directly to the Property Trustee Account and no other funds of the Trust
shall be deposited in the Property Trustee Account. The sole signatories for
such accounts shall be designated by the Regular Trustees; PROVIDED, HOWEVER,
that the Property Trustee shall designate the signatories for the Property
Trustee Account.
SECTION 11.4. WITHHOLDING.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over-withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding. Furthermore, if withholding is imposed on
payments of interest on the Junior Subordinated Debentures, to the extent such
withholding is attributable to ownership by a specific Holder of Capital
Securities, the amount withheld shall be deemed a distribution in the amount of
the withholding to such specific Holder.
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ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1. AMENDMENTS.
Except as otherwise provided in this Declaration or by any applicable terms
of the Securities,
(a) this Declaration may only be amended by a written instrument approved
and executed by the Regular Trustees (or, if there are more than two Regular
Trustees a majority of the Regular Trustees) and:
(i) if the amendment affects the rights, powers, duties, obligations
or immunities of the Property Trustee, also by the Property Trustee; and
(ii) if the amendment affects the rights, powers, duties, obligations
or immunities of the Delaware Trustee, also by the Delaware Trustee;
(b) no amendment shall be made, and any such purported amendment shall be
void and ineffective:
(i) unless, in the case of any proposed amendment, the Property
Trustee shall have first received an Officers' Certificate from each of the
Trust and the Sponsor that such amendment is permitted by, and conforms to,
the terms of this Declaration (including the terms of the Securities);
(ii) unless, in the case of any proposed amendment which affects the
rights, powers, duties, obligations or immunities of the Property Trustee,
the Property Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to the Sponsor or
the Trust) that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be classified for
purposes of United States federal income taxation as a grantor trust;
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(B) reduce or otherwise adversely affect the powers of the
Property Trustee; or
(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(c) at such time after the Trust has issued any Securities that remain
outstanding, any amendment that would adversely affect the rights, privileges or
preferences of any Holder of Securities may be effected only with such
additional requirements as may be set forth in the terms of such Securities;
(d) Section 9.1(c) and this Section 12.1 shall not be amended without the
consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the Holders of a
Majority in liquidation amount of the Common Securities;
(f) the rights of the holders of the Common Securities under Article V to
increase or decrease the number of, and appoint and remove Trustees shall not be
amended without the consent of the Holders of a Majority in liquidation amount
of the Common Securities;
(g) notwithstanding Section 12.1(c), this Declaration may be amended from
time to time by the Holders of a Majority in liquidation amount of the Common
Securities and the Property Trustee, without the consent of the Holders of the
Capital Securities to:
(i) cure any ambiguity, correct or supplement any provision in this
Declaration that may be inconsistent with any other provision, or to make
any other provisions with respect to matters or questions arising under
this Declaration, which shall not be inconsistent with the other provisions
of this Declaration; or
(ii) to modify, eliminate or add to any provisions of this Declaration
to such extent as shall be necessary (A) to ensure that the Trust will be
classified for United States federal income tax purposes as a grantor trust
at all times that any Securities are outstanding or (B) to ensure that the
Trust will not be required to register as an investment company under the
Investment Company Act or to ensure that the Capital Securities will
continue to constitute Tier I capital for purposes of the capital adequacy
guidelines or policies of the Federal Reserve or its successor;
PROVIDED, HOWEVER, such action specified in this Section 12.1(g) shall not
adversely affect in any material respect the interests of any Holder of
Securities; and
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(h) this Declaration may be amended by the Holders of a Majority in
liquidation amount of the Common Securities and the Property Trustee if:
(i) the Holders of a Majority in liquidation amount of the Capital
Securities consent to such amendment and
(ii) the Regular Trustees have received an opinion of nationally
recognized independent counsel experienced in such matters to the effect
that such amendment or the exercise of any power granted to the Regular
Trustees in accordance with such amendment will not affect the Trust's
status as a grantor trust for United States federal income tax purposes or
the Trust's exemption from status as an "investment company" under the
Investment Company Act,
PROVIDED, that without the consent of each Holder of Securities, this
Declaration may not be amended to:
(x) change the amount or timing of any distribution on the Securities
or otherwise adversely affect the amount of any distribution required to be
made in respect of the Securities as of a specified date or
(y) restrict the right of a Holder of Securities to institute suit for
the enforcement of any such payment on or after such date.
(i) Any amendments of this Declaration shall become effective when notice
thereof is given to Holders of Securities.
SECTION 12.2. MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY WRITTEN
CONSENT.
(a) Meetings of the Holders of any class of Securities may be called at any
time by the Regular Trustees (or as provided in the terms of the Securities) to
consider and act on any matter on which Holders of such class of Securities are
entitled to act under the terms of this Declaration, the terms of the Securities
or the rules of any stock exchange on which the Capital Securities are listed or
admitted for trading. The Regular Trustees shall call a meeting of the Holders
of such class if directed to do so by the Holders of at least 25% in liquidation
amount of such class of Securities. Such direction shall be given by delivering
to the Regular Trustees one or more calls in a writing stating that the signing
Holders of Securities wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders of
Securities calling a meeting shall specify in writing the Security Certificates
held by the Holders of Securities exercising the right to call a meeting and
only those Securities specified shall be counted for purposes of determining
whether the required percentage set forth in the second sentence of this
paragraph has been met.
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(b) Except to the extent otherwise provided in the terms of the Securities,
the following provisions shall apply to meetings of Holders of Securities:
(i) notice of any such meeting shall be given to all the Holders of
Securities having a right to vote thereat at least 7 days and not more than
60 days before the date of such meeting. Each such notice will include a
statement setting forth the following information: (i) the date of such
meeting or the date by which such action is to be taken; (ii) a description
of any resolution proposed for adoption at such meeting on which such
Holders are entitled to vote or of such matter upon which written consent
is sought; and (iii) instructions of the delivery of proxies or consents.
Whenever a vote, consent or approval of the Holders of Securities is
permitted or required under this Declaration or the rules of any stock
exchange on which the Capital Securities are listed or admitted for
trading, such vote, consent or approval may be given at a meeting of the
Holders of Securities. Any action that may be taken at a meeting of the
Holders of Securities may be taken without a meeting if a consent in
writing setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum amount of Securities in
liquidation amount that would be necessary to authorize or take such action
at a meeting at which all Holders of Securities having a right to vote
thereon were present and voting. Prompt notice of the taking of action
without a meeting shall be given to the Holders of Securities entitled to
vote who have not consented in writing. The Regular Trustees may specify
that any written ballot submitted to the Security Holder for the purpose of
taking any action without a meeting shall be returned to the Trust within
the time specified by the Regular Trustees;
(ii) each Holder of a Security may authorize any Person to act for it
by proxy on all matters in which a Holder of Securities is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration of
11 months from the date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the Holder of Securities
executing it. Except as otherwise provided herein, all matters relating to
the giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware corporation and
the Holders of the Securities were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be conducted
by the Regular Trustees or by such other Person that the Regular Trustees
may designate;
(iv) unless the Business Trust Act, this Declaration, the terms of the
Securities, the Trust Indenture Act or the listing rules of any stock
exchange on which the Capital Securities are then listed or trading,
otherwise provides, the Regular Trustees, in their sole discretion, shall
establish all other provisions relating to meetings of Holders of
Securities, including notice of the time, place or purpose of any meeting
at which any
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matter is to be voted on by any Holders of Securities, waiver of any such
notice, action by consent without a meeting, the establishment of a record
date, quorum requirements, voting in person or by proxy or any other matter
with respect to the exercise of any such right to vote; and
(v) any Capital Securities that are owned by the Debt Issuer or any
entity directly or indirectly controlling or controlled by, or under direct
or indirect common control with, the Debt Issuer shall not be entitled to
vote or consent and shall, for purposes of any vote or consent, be treated
as if such Capital Securities were not issued and outstanding.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND
DELAWARE TRUSTEE
SECTION 13.1. REPRESENTATIONS AND WARRANTIES OF PROPERTY TRUSTEE.
The Trustee that acts as initial Property Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Property Trustee represents and warrants, as applicable, to the Trust
and the Sponsor at the time of the Successor Property Trustee's acceptance of
its appointment as Property Trustee that:
(a) the Property Trustee is a national banking association with trust
powers, duly organized, validly existing and in good standing, with trust power
and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, the Declaration;
(b) the execution, delivery and performance by the Property Trustee of the
Declaration has been duly authorized by all necessary corporate action on the
part of the Property Trustee. The Declaration has been duly executed and
delivered by the Property Trustee, and it constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law);
(c) the execution, delivery and performance of the Declaration by the
Property Trustee does not conflict with or constitute a breach of the charter or
by-laws of the Property Trustee; and
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(d) no consent, approval or authorization of, or registration with or
notice to, any state or federal banking authority is required for the execution,
delivery or performance by the Property Trustee, of the Declaration.
SECTION 13.2. REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE.
The Trustee that acts as initial Delaware Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) The Delaware Trustee is a Delaware corporation, duly organized, validly
existing and in good standing, with corporate power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, the
Declaration.
(b) The Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and the Declaration. The Declaration under
Delaware law constitutes a legal, valid and binding obligation of the Delaware
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency, and other similar
laws affecting creditors' rights generally and to general principles of equity
and the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(c) No consent, approval or authorization of, or registration with or
notice to, any Delaware or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of the Declaration.
(d) The Delaware Trustee is a natural person who is a resident of the State
of Delaware or, if not a natural person, an entity which has its principal place
of business in the State of Delaware.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. NOTICES.
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by first class mail, as follows:
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(a) if given to the Trust, in care of the Regular Trustees at the Trust's
mailing address set forth below (or such other address as the Trust may give
notice of to the Holders of the Securities):
UnionBanCal Finance Trust I
c/o UnionBanCal Corporation
400 California Street
San Francisco, California 94104
Attention: Corporate Secretary
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as Delaware Trustee may give notice of to the
Holders of the Securities):
DELAWARE TRUSTEE
First Chicago Delaware Inc.
300 King Street
Wilmington, DE 19801
Attention: Michael J. Majchrzak
(c) if given to the Property Trustee, at its Corporate Trust Office's
mailing address set forth below (or such other address as the Property Trustee
may give notice of to the Holders of the Securities).
PROPERTY TRUSTEE
The First National Bank of Chicago
One First National Plaza, Suite 0126
Chicago, IL 60670-0126
Attention: Corporate Trust Services Division
(d) if given to the Holder of the Common Securities, at the mailing address
of the Sponsor set forth below (or such other address as the Holder of the
Common Securities may give notice to the Trust):
UnionBanCal Corporation
400 California Street
San Francisco, California 94104
Attention: General Counsel
(e) if given to any other Holder, at the address set forth on the books and
records of the Trust.
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All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2. GOVERNING LAW.
THIS DECLARATION AND THE RIGHTS OF THE PARTIES HEREUNDER SHALL BE GOVERNED
BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND ALL
RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
SECTION 14.3. INTENTION OF THE PARTIES.
It is the intention of the parties hereto that the Trust be classified for
United States federal income tax purposes as a grantor trust. The provisions of
this Declaration shall be interpreted to further this intention of the parties.
SECTION 14.4. HEADINGS.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 14.5. SUCCESSORS AND ASSIGN.
Whenever in this Declaration any of the parties hereto is named or referred
to, the successors and assigns of such party shall be deemed to be included, and
all covenants and agreements in this Declaration by the Sponsor and the Trustees
shall bind and inure to the benefit of their respective successors and assigns,
whether so expressed.
SECTION 14.6. PARTIAL ENFORCEABILITY.
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
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SECTION 14.7. COUNTERPARTS.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
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IN WITNESS WHEREOF, the undersigned has caused this Declaration to be
executed as of the day and year first above written.
/s/ David A. Anderson
---------------------------------------------------
David A. Anderson, as Regular Trustee
Solely as trustee and not in an individual capacity
/s/ David I. Matson
---------------------------------------------------
David I. Matson, as Regular Trustee
Solely as trustee and not in an individual capacity
/s/ John H. McGuckin, Jr.
---------------------------------------------------
John H. McGuckin, Jr., as Regular Trustee
Solely as trustee and not in an individual capacity
FIRST CHICAGO DELAWARE INC., as Delaware
Trustee
By: /s/ Sandra L. Caruba
-----------------------------------------------
Name: Sandra L. Caruba
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By: /s/ Sandra L. Caruba
-----------------------------------------------
Name: Sandra L. Caruba
Title: Vice President
UNIONBANCAL CORPORATION, as Sponsor
By: /s/ Yoshihiko Someya
-----------------------------------------------
Name: Yoshihiko Someya
Title: Deputy Chairman
<PAGE>
ANNEX I
TERMS OF
7 3/8% CAPITAL SECURITIES
7 3/8% COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of Trust,
dated as of February 19, 1999 (as amended from time to time, the "Declaration"),
the designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Capital Securities and the Common Securities are set out
below (each capitalized term used but not defined herein has the meaning set
forth in the Declaration):
1. DESIGNATION AND NUMBER.
(a) Capital Securities. 14,000,000 Capital Securities of the Trust with an
aggregate liquidation amount with respect to the assets of the Trust of Three
Hundred Fifty Million Dollars ($350,000,000), and a liquidation amount with
respect to the assets of $25 per preferred security, are hereby designated for
the purposes of identification only as "7 3/8% Capital Securities" (the "Capital
Securities"). The Capital Security Certificates evidencing the Capital
Securities shall be substantially in the form of Exhibit A-1 to the Declaration,
with such letters, numbers, notations, other means of identification or
designation or other changes or additions thereto or deletions therefrom as may
be required by ordinary usage, custom or practice and such legends or
endorsements required by law, state exchange rule and agreements to which the
Trust is subject, if any (provided that any such notation, legend or endorsement
is in a form acceptable to the Trust).
(b) Common Securities. 432,990 Common Securities of the Trust with an
aggregate liquidation amount with respect to the assets of the Trust of Ten
Million, Eight Hundred Twenty-Four Thousand, Seven Hundred Fifty Dollars
($10,824,750) and a liquidation amount with respect to the assets of the Trust
of $25 per common security, are hereby designated for the purposes of
identification only as "7 3/8% Common Securities" (the "Common Securities"). The
Common Securities Certificates evidencing the Common Securities shall be in the
form of Exhibit A-2 to the Declaration, with such letters, numbers, notations,
other means of identification or designation or other changes or additions
thereto or deletions therefrom as may be required by ordinary usage, custom or
practice and such legends or endorsements required by law, state exchange rule
and agreements to which the Trust is subject, if any (provided that any such
notation, legend or endorsement is in a form acceptable to the Trust).
2. DISTRIBUTIONS.
(a) Distributions payable on each Security will be fixed at a rate per
annum of 7 3/8% (the "Coupon Rate") of the stated liquidation amount of $25 per
Security, such rate being the rate of interest payable on the Junior
Subordinated Debentures to be held by the Property Trustee. Distributions in
arrears for more than one quarter will bear interest thereon compounded
quarterly
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at the Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such interest payable unless otherwise
stated. A Distribution is payable only to the extent that payments are made in
respect of the Junior Subordinated Debentures held by the Property Trustee and
to the extent the Property Trustee has funds available therefor. The amount of
Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any period shorter than a full quarterly Distribution period for which
Distributions are computed, Distributions will be computed on the basis of the
actual number of days elapsed per 30-day month.
(b) Distributions on the Securities will be cumulative, will accumulate
from February 19, 1999 and will be payable quarterly in arrears, on February 15,
May 15, August 15, and November 15 of each year, commencing on May 15, 1999,
except as otherwise described below. So long as the Debt Issuer shall not be in
default in the payment of interest on the Junior Subordinated Debentures, the
Debt Issuer has the right under the Indenture to defer payments of interest on
the Junior Subordinated Debentures by extending the interest payment period from
time to time on the Junior Subordinated Debentures for a period not exceeding 20
consecutive quarters (an "Extension Period"), during which Extension Period no
interest shall be due and payable on the Junior Subordinated Debentures,
PROVIDED THAT no Extension Period shall last beyond the date of maturity or any
redemption date of the Junior Subordinated Debentures. As a consequence of such
deferral, Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accumulate with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate, compounded quarterly, during
any such Extension Period. Prior to the termination of any such Extension
Period, the Debt Issuer may further extend such Extension Period; PROVIDED THAT
such Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarters or extend beyond the maturity or
any redemption date of the Junior Subordinated Debentures. Payments of
accumulated Distributions and, to the extent permitted by applicable law,
accrued interest thereon, shall be payable on the Distribution payment date on
which the relevant Extension Period terminates and shall be payable to Holders
as they appear on the books and records of the Trust at the close of business on
the record date next preceding such Distribution payment date. Upon the
termination of any Extension Period and the payment of all amounts then due, the
Debt Issuer may commence a new Extension Period, subject to the above
requirements. Each Extension Period, if any, will end on an interest payment
date for the Junior Subordinated Debentures; such date will also be a
Distribution payment date for the Securities. In the event that the Debt Issuer
exercises its right to defer payment of interest, then during such Extension
Period the Debt Issuer shall not (a) declare or pay dividends on, make
distributions with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock, or (b) make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities issued by the Debt Issuer (including other junior
subordinated debt securities) that rank PARI PASSU with or junior to the Junior
Subordinated Debentures or make any guarantee payments with respect to the
foregoing Junior Subordinated Debentures; PROVIDED HOWEVER, that the foregoing
restrictions in (a) and (b) above do not apply to (i) repurchases, redemptions
or other acquisitions of shares of capital stock of the Debt Issuer in
connection with (1) any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more
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employees, officers, directors or consultants, (2) a dividend reinvestment or
shareholder stock purchase plan or (3) the issuance of capital stock of the Debt
Issuer, or securities convertible into to exercisable for capital stock of the
Debt Issuer, as consideration in an acquisition transaction entered into before
the Extension Period, (ii) an exchange, redemption or conversion of any class or
series of capital stock of the Debt Issuer, or any capital stock of one of its
subsidiaries, for any class or series of capital stock of the Debt Issuer, or of
any class or series of the indebtedness of the Debt Issuer for any class or
series of capital stock of the Debt Issuer, (iii) the purchase of fractional
interests in shares of capital stock of the Debt Issuer pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted into or exchanged for such capital stock, (iv) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
or the issuance of rights, stock or other property under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto, (v)
any dividend in the form of stock, warrants, options or other rights where the
dividend or the stock issuable upon exercise of warrants, options or other
rights is the same stock as that on which the dividend is being paid or ranks
PARI PASSU with or junior to that stock; or (vi) payments by the Debt Issuer, as
guarantor, under the Guarantee, the Common Securities Guarantee or any similar
guarantee by the Debt Issuer with respect to any trust common or trust preferred
securities of its subsidiaries.
(c) Distributions on the Capital Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates. While the Capital Securities remain in book-entry only form, the
relevant record dates shall be one Business Day prior to the relevant payment
dates which payment dates correspond to the interest payments dates on the
Junior Subordinated Debentures. Subject to any applicable laws and regulations
and the provisions of the Declaration, each such payment in respect of the
Capital Securities will be made as described under the heading "Book-Entry Only
Issuance The Depository Trust Company" in the Prospectus Supplement dated
February 11, 1999, to the Prospectus dated February 10, 1999, (together, the
"PROSPECTUS") included in the Registration Statement on Form S-3 of the Sponsor,
the Debt Issuer and the Trust. The relevant record dates for the Common
Securities, and, if the Capital Securities shall not continue to remain in
book-entry form, the relevant record dates for the Capital Securities, shall
conform to the rules of any securities exchange on which the securities are
listed and, if none, shall be fifteen days prior to the relevant payment dates,
which payment dates correspond to the record and interest payment dates on the
Junior Subordinated Debentures. The relevant record dates for the Common
Securities shall be the same record dates as for the Capital Securities.
Distributions payable on any Securities that are not punctually paid on any
Distribution payment date, as a result of the Debt Issuer having failed to make
a payment under the Junior Subordinated Debentures, will cease to be payable to
the Person in whose name such Securities are registered on the relevant record
date, and such defaulted Distribution will instead be payable to the Person in
whose name such Securities are registered on the special record date or other
specified date determined in accordance with the Indenture. If any date on which
Distributions are payable on the Securities is not a Business Day, then payment
of the Distributions payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other payment in respect
of any such delay) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be
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made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date.
(d) [Intentionally Omitted.]
(e) In the event that there is any money or other property held by or for
the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION.
The Debt Issuer will have the right at any time to cause the Trust to be
dissolved with the result that, after satisfaction of creditors of the Trust, a
Like Amount of Junior Subordinated Debentures will be distributed on a Pro Rata
basis to the Holders of the Capital Securities and the Common Securities in
liquidation of such Holders' interests in the Trust, within 90 days following
notice given to the Holders of the Capital Securities, subject to the Regular
Trustees' receipt of an opinion of nationally recognized independent counsel
experienced in such matters to the effect that the Holders will not recognize
any income, gain or loss for United States federal income tax purposes as a
result of the dissolution of the Trust and such distribution to Holders of
Capital Securities.
In the event of any voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Trust (each a "Liquidation"), the Holders of
the Securities on the date of the Liquidation will be entitled to receive out of
the assets of the Trust available for distribution to Holders of Securities
after satisfaction of liabilities of creditors an amount equal to the aggregate
of the stated liquidation amount of $25 per Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"), unless, in connection with such Liquidation, Junior Subordinated
Debentures in an aggregate stated principal amount equal to the aggregate stated
liquidation amount of such Securities, with an interest rate equal to the Coupon
Rate of, and bearing accrued and unpaid interest in an amount equal to the
accumulated and unpaid Distributions on, such Securities, shall have been
distributed on a Pro Rata basis to the Holders of the Securities in exchange for
such Securities.
If, upon any such Liquidation, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Securities shall be paid on a Pro Rata basis.
If the Junior Subordinated Debentures are distributed to the Holders of the
Securities, pursuant to the terms of the Indenture, the Debt Issuer will use all
reasonable best efforts to have the Junior Subordinated Debentures listed on the
New York Stock Exchange or on such other exchange as the Capital Securities were
listed on immediately prior to the distribution of the Junior Subordinated
Debentures.
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4. REDEMPTION AND DISTRIBUTION.
(a) The Junior Subordinated Debentures will mature on May 15, 2029, and may
be redeemed, in whole or in part, at any time on or after February 19, 2004.
Upon the repayment of the Junior Subordinated Debentures in whole or in part,
whether at maturity, upon redemption or otherwise, the proceeds from such
repayment or payment shall be simultaneously applied to redeem a Like Amount of
Securities at a redemption price per Security equal to the redemption price of
the Junior Subordinated Debentures, together with accumulated and unpaid
Distributions thereon to, but excluding, the date of the redemption, payable in
cash (the "Redemption Price"). Holders will be given not less than 30 nor more
than 60 days' notice of such redemption.
(b) If fewer than all the outstanding Securities are to be so redeemed, the
Common Securities and the Capital Securities will be redeemed Pro Rata and the
Capital Securities to be redeemed will be as described in Section 4(f) below.
(c) If, at any time, a Tax Event, an Investment Company Event or a
Regulatory Capital Event (each, as defined below, a "Special Event") shall occur
and be continuing, the Debt Issuer shall have the right, subject to the prior
approval of the Federal Reserve if such approval is then required under
applicable capital guidelines or policies, upon not less than 30 nor more than
60 days' notice, to redeem the Junior Subordinated Debentures in whole (not in
part) at a redemption price equal to 100% of the principal amount thereof plus
accrued and unpaid interest thereon, for cash within 90 days following the
occurrence of such Special Event. Following such redemption, a Like Amount of
Securities shall be redeemed by the Trust at the Redemption Price on a Pro Rata
basis.
"Tax Event" means that the Regular Trustees, or, if the Trust has been
terminated at the time, an appropriate representative of the holders of the
Junior Subordinated Debentures, shall have received an opinion of nationally
recognized independent tax counsel experienced in such matters (a "Tax Opinion")
to the effect that, as a result of (a) any amendment to, clarification of, or
change (including any announced prospective change) in the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, (b) any judicial
decision, official administrative pronouncement, ruling, regulatory procedure,
notice or announcement, including any notice or announcement of intent to adopt
such procedures or regulations (an "Administrative Action") or (c) any amendment
to, clarification of, or change in the official position or the interpretation
of such Administrative Action or judicial decision that differs from the
theretofore generally accepted position, in each case, by any legislative body,
court, governmental authority or regulatory body, irrespective of the manner in
which such amendment, clarification, change or Administrative Action is made
known, which amendment, clarification, change or Administrative Action is
effective or such pronouncement or decision is announced, in each case, on or
after, February 11, 1999, there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date of the Tax Opinion, subject to
United States federal income tax with respect to income accrued or received on
the Junior Subordinated Debentures, (ii) the Trust is, or will be within 90 days
of the date thereof, subject to more than a de minimis amount of taxes, duties
or other governmental charges, except for withholding taxes, or (iii) interest
paid in cash by
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the Debt Issuer to the Trust on the Junior Subordinated Debentures is not, or
within 90 days of the date of the Tax Opinion will not be, deductible, in whole
or in part, by the Debt Issuer for United States federal income tax purposes.
Notwithstanding the foregoing, a Tax Event shall not include any change in tax
law that requires the Debt Issuer for United States federal income tax purposes
to defer taking a deduction for any original issue discount ("OID") that accrues
with respect to the Junior Subordinated Debentures until the interest payment
related to such OID is paid by the Debt Issuer in cash; PROVIDED, that such
change in tax law does not create more than an insubstantial risk that the Debt
Issuer will be prevented from taking a deduction for OID accruing with respect
to the Junior Subordinated Debentures at a date that is no later than the date
the interest payment related to such OID is actually paid by the Debt Issuer in
cash.
"Investment Company Event" means that the Regular Trustees shall have
received an opinion of nationally recognized independent counsel experienced in
such matters to the effect that, as a result of the occurrence of a change
(including a prospective change) in law or regulation or a written change
(including a prospective change) in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority on or after February 11, 1999 (a "Change in 1940 Act Law"), there is
more than an insubstantial risk that the Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act of 1940, as amended (the "1940 Act").
"Regulatory Capital Event" means that the Sponsor shall have received an
opinion of nationally recognized independent counsel experienced in such matters
that, as a result of (a) any amendment to, clarification of or change (including
any announced prospective change) in applicable laws or regulations or official
interpretations thereof or policies with respect thereto or (b) any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment, clarification, change, pronouncement or
decision is announced or is effective after the date of issuance of the Capital
Securities, there is more than an insubstantial risk that the Capital Securities
will no longer constitute Tier I capital of the Sponsor for purposes of the
capital adequacy guidelines or policies of the Federal Reserve or its successor
as the Sponsor's primary federal banking regulator.
After the date fixed by the Regular Trustees for any distribution of Junior
Subordinated Debentures upon dissolution of the Trust: (i) the Securities will
no longer be deemed to be outstanding, (ii) The Depository Trust Company (the
"Depositary") or its nominee (or any successor Clearing Agency or its nominee),
as the record Holder of the Capital Securities held in global form, will receive
a registered certificate or certificates representing the Junior Subordinated
Debentures held in global form to be delivered upon such distribution, and (iii)
certificates representing Securities held in definitive form, except for
certificates representing Capital Securities held by the Depositary or its
nominee (or any successor Clearing Agency or its nominee), will be deemed to
represent Junior Subordinated Debentures having an aggregate principal amount
equal to the aggregate stated liquidation amount of, with an interest rate
identical to the Coupon Rate of, and accrued and unpaid interest (including
Compound Interest (as defined in the Indenture)) equal to
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accumulated and unpaid Distributions on such Securities until such certificates
are presented to the Debt Issuer or its agent for transfer or reissue.
(d) The Trust may not redeem fewer than all the outstanding Securities
unless all accumulated and unpaid Distributions have been paid on all Securities
for all quarterly Distribution periods terminating on or prior to the date of
redemption.
(e) (i) Notice of any redemption of, or notice of distribution of
Junior Subordinated Debentures in exchange for, the Securities (a
"Redemption/Distribution Notice") will be given by the Trust by mail to
each Holder of Securities to be redeemed or exchanged not fewer than 30 nor
more than 60 days before the date fixed for redemption or exchange thereof
which, in the case of a redemption, will be the date fixed for redemption
of the Junior Subordinated Debentures. For purposes of the calculation of
the date of redemption or exchange and the dates on which notices are given
pursuant to this Section 4(e), a Redemption/Distribution Notice shall be
deemed to be given on the day such notice is first mailed by first-class
mail, postage prepaid, or by such other means suitable to assure delivery
of such written notice, to Holders of Securities. Each
Redemption/Distribution Notice shall be addressed to the Holders of
Securities at the address of each such Holder appearing in the books and
records of the Trust. No defect in the Redemption/Distribution Notice or in
the mailing of either thereof with respect to any Holder of Securities
shall affect the validity of the redemption or exchange proceedings with
respect to any other Holder of Securities.
(ii) In addition to the Redemption/Distribution Notice to be provided
to the Holders of Securities pursuant to clause (i) of this Section 4(e),
the Debt Issuer or the Trust shall give public notice of any such
redemption by the issuance of a press release through the services of the
Dow Jones Broad Tape, Reuters News Service and Bloomberg News Service.
(f) In the event that fewer than all the outstanding Securities are to be
redeemed, the particular Capital Securities to be redeemed shall be selected on
a Pro Rata basis not more than 60 days prior to the Redemption Date from the
outstanding Capital Securities not previously called for redemption, by such
method as the Property Trustee shall deem fair and appropriate, or if the
Capital Securities are then held in book-entry form, in accordance with the
Depositary's customary procedures, it being understood that, in respect of
Capital Securities registered in the name of and held of record by the
Depositary or its nominee (or any successor Clearing Agency or its nominee) or
any nominee, the distribution of the proceeds of such redemption will be made to
each Clearing Agency Participant (or Person on whose behalf such nominee holds
such securities) in accordance with the procedures applied by such agency or
nominee. The Property Trustee shall promptly notify the securities registrar for
the Securities in writing of the Capital Securities selected for redemption.
(g) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued for a redemption
if the Junior Subordinated Debentures are redeemed as set out in the Indenture
(which notice will be irrevocable), then (i) with respect to Capital Securities
held in book-entry form by 12:00 noon, New York City time, on the redemption
I-7
<PAGE>
date, provided that the Debt Issuer has paid the Property Trustee a sufficient
amount of cash in connection with the related redemption of the Junior
Subordinated Debentures, the Property Trustee will deposit irrevocably with the
Depositary or its nominee (or successor Clearing Agency or its nominee) funds
sufficient to pay the applicable Redemption Price with respect to such Capital
Securities and will give the Depository irrevocable instructions and authority
to pay the Redemption Price to the Holders of such Capital Securities, and (ii)
with respect to Capital Securities issued in definitive form and Common
Securities, provided that the Debt Issuer has paid the Property Trustee a
sufficient amount of cash in connection with the related redemption of the
Junior Subordinated Debentures, the Property Trustee will pay the relevant
Redemption Price to the Holders of such Securities by check mailed to the
address of the relevant Holder appearing on the books and records of the Trust
on the redemption date. If a Redemption/Distribution Notice shall have been
given in connection with a redemption and funds deposited as required, then from
and after the required date of such deposit, distributions will cease to
accumulate on the Securities so called for redemption and all rights of Holders
of such Securities so called for redemption will cease, except the right of the
Holders of such Securities to receive the Redemption Price, but without interest
on such Redemption Price. If any date fixed for redemption of Securities is not
a Business Day, then payment of the Redemption Price payable on such date will
be made on the next succeeding Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day falls in
the next calendar year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date fixed for redemption. If payment of the Redemption Price in respect of any
Securities is improperly withheld or refused and not paid either by the Property
Trustee or by the Sponsor as guarantor pursuant to the relevant Securities
Guarantee, Distributions on such Securities will continue to accumulate from the
original redemption date to the actual date of payment, in which case the actual
payment date will be considered the date fixed for redemption for purposes of
calculating the Redemption Price.
Neither the Regular Trustees nor the Trust shall be required (i) in the
event of any redemption in part, to issue, register the transfer of or exchange
any Securities during a period beginning at the opening of business 15 days
before any selection for redemption of Securities and ending at the close of
business on the earliest date in which the relevant Redemption/Distribution
Notice is deemed to have been given to all holders of Securities to be so
redeemed or (ii) to register the transfer of or exchange any Securities selected
for redemption, in whole or in part, except for the unredeemed portion of any
Securities being redeemed in part.
(h) Redemption/Distribution Notices shall be sent by the Regular Trustees
on behalf of the Trust to (i) in respect of Capital Securities held in global
form, the Depositary or its nominee (or any successor Clearing Agency or its
nominee), (ii) with respect to Capital Securities held in definitive form, to
the Holders thereof, and (iii) in respect of the Common Securities, to the
Holders thereof.
(i) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Sponsor or any of its
subsidiaries may at any time and from time to time purchase outstanding Capital
Securities by tender, in the open market or otherwise.
I-8
<PAGE>
5. [Intentionally Omitted.]
6. VOTING AND OTHER RIGHTS - CAPITAL SECURITIES.
(a) Except as provided under Section 8 of this Annex I to the Declaration
and as otherwise required by law, the Guarantee and the Declaration, the Holders
of the Capital Securities will not have voting rights.
(b) Subject to the requirements set forth in this paragraph, the Holders of
a Majority in liquidation amount of the Capital Securities then outstanding,
voting separately as a class, may direct the time, method, and place of
conducting any proceeding for any remedy available to the Property Trustee, or
may direct the exercise of any trust or power conferred upon the Property
Trustee under the Declaration, including the right to direct the Property
Trustee, as holder of the Junior Subordinated Debentures, to (i) exercise the
remedies available under the Indenture with respect to the Junior Subordinated
Debentures, (ii) waive any past default and its consequences that are waivable
under the Indenture, (iii) exercise any right to rescind or annul a declaration
that the principal of all the Junior Subordinated Debentures shall be due and
payable, or (iv) in accordance with Section 8 hereof, consent to any amendment,
modification or termination of the Indenture where consent is required,
PROVIDED, HOWEVER, that if an Event of Default under the Indenture has occurred
and is continuing then the holders of 25% of the aggregate liquidation amount of
the Capital Securities then outstanding may direct the Property Trustee to
declare the principal of and interest on the Junior Subordinated Debentures
immediately due and payable; and PROVIDED, FURTHER, that, where a consent under
the Indenture would require the consent or act of the Holders of greater than a
majority of the Holders in principal amount of Junior Subordinated Debentures
then outstanding (a "Super Majority") affected thereby, the Property Trustee may
only give such consent or take such action at the written direction of the
Holders of at least the proportion in liquidation amount of the Capital
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Junior Subordinated Debentures then outstanding. The
Property Trustee shall not revoke any action previously authorized or approved
by a vote of the Holders of the Capital Securities. Other than with respect to
directing the time, method and place of conducting any remedy available to the
Property Trustee as set forth above, the Property Trustee shall not take any
action in accordance with the directions of the Holders of the Capital
Securities under this paragraph unless the Property Trustee has obtained an
opinion of nationally recognized independent tax counsel experienced in such
matters to the effect that for United States federal income tax purposes, such
action will not cause the Trust to be classified as other than a grantor trust.
If the Property Trustee fails to enforce its rights under the Junior
Subordinated Debentures, any Holder of Capital Securities may institute a legal
proceeding against any person to enforce the Property Trustee's rights under the
Junior Subordinated Debentures. If an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Debt Issuer to
pay interest or principal on the Junior Subordinated Debentures on the date such
interest or principal is otherwise payable (or in the case of redemption, on the
redemption date), then a Holder of Capital Securities may directly institute a
proceeding for enforcement of payment to such Holder of the principal of or
interest on the Junior Subordinated Debentures having a principal amount equal
to the aggregate liquidation amount of
I-9
<PAGE>
the Capital Securities of such Holder (a "Direct Action") on or after the
respective due date specified in the Junior Subordinated Debentures. In
connection with such Direct Action, the rights of the Holders of Common
Securities will be subrogated to the rights of such Holder of Capital Securities
to the extent of any payment made by the Issuer to such Holder of Capital
Securities in such Direct Action. Except as provided in the preceding sentences,
the Holders of Capital Securities will not be able to exercise directly any
other remedy available to the holders of the Junior Subordinated Debentures.
The Property Trustee shall notify all Holders of the Capital Securities of
any notice of default received from the trustee under the Indenture with respect
to the Junior Subordinated Debentures. Such notice shall state that such event
of default also constitutes and Event of Default under the Declaration.
Any approval or direction of Holders of Capital Securities may be given at
a separate meeting of Holders of Capital Securities convened for such purpose,
at a meeting of all of the Holders of Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice of any meeting at
which Holders of Capital Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken, to be mailed to
each Holder of record of Capital Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Capital Securities will be
required for the Trust to redeem and cancel Capital Securities or to distribute
the Junior Subordinated Debentures in accordance with the Declaration and the
terms of the Securities.
Notwithstanding that Holders of Capital Securities are entitled to vote or
consent under any of the circumstances described above, any of the Capital
Securities that are owned by the Sponsor or any Affiliate of the Sponsor shall
not be entitled to vote or consent and shall, for purposes of such vote or
consent, be treated as if they were not outstanding.
7. VOTING RIGHTS - COMMON SECURITIES.
(a) Except as provided under Sections 7(b), 7(c) and 8 of this Annex I of
the Declaration and as otherwise required by law and the Declaration, the
Holders of the Common Securities will not have voting rights.
(b) The Holders of the Common Securities are entitled, in accordance with
Article V of the Declaration, to vote to appoint, remove or replace any Trustee
or to increase or decrease the number of Trustees.
I-10
<PAGE>
(c) Subject to Section 2.6 of the Declaration and only after any Event of
Default with respect to the Capital Securities has been cured, waived, or
otherwise eliminated and subject to the requirements of the second to last
sentence of this paragraph, the Holders of a Majority in liquidation amount of
the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the Property
Trustee under the Declaration, including (i) directing the time, method, place
of conducting any proceeding for any remedy available to the Debt Trustee, or
exercising any trust or power conferred on the Debt Trustee with respect to the
Junior Subordinated Debentures, (ii) waive any past default and its consequences
that are waivable under the Indenture, (iii) exercise any right to rescind or
annul a declaration that the principal of all the Junior Subordinated Debentures
shall be due and payable, PROVIDED THAT, where a consent or action under the
Indenture would require the consent or act of the relevant Super Majority, the
Property Trustee may only give such consent or take such action at the written
direction of the Holders of at least the proportion in liquidation amount of the
Common Securities which the relevant Super Majority represents of the aggregate
principal amount of the Junior Subordinated Debentures outstanding. The Property
Trustee shall not revoke any action previously authorized or approved by a vote
of the Holders of the Capital Securities. Other than with respect to directing
the time, method and place of conducting any remedy available to the Property
Trustee or the Debt Trustee as set forth above, the Property Trustee shall not
take any action in accordance with the directions of the Holders of the Common
Securities under this paragraph unless the Property Trustee has obtained an
opinion of nationally recognized independent tax counsel experienced in such
matters to the effect that for United States federal income tax purposes, such
action will not cause the Trust to be classified as other than a grantor trust.
If the Property Trustee fails to enforce its rights under the Declaration, any
Holder of Common Securities may institute a legal proceeding directly against
any Person to enforce the Property Trustee's rights under the Declaration,
without first instituting a legal proceeding against the Property Trustee or any
other Person.
Any approval or direction of Holders of Common Securities may be given at a
separate meeting of Holders of Common Securities convened for such purpose, at a
meeting of all of the Holders of Securities in the Trust or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting at which
Holders of Common Securities are entitled to vote, or of any matter upon which
action by written consent of such Holders is to be taken, to be mailed to each
Holder of record of Common Securities. Each such notice will include a statement
setting forth (i) the date of such meeting or the date by which such action is
to be taken, (ii) a description of any resolution proposed for adoption at such
meeting on which such Holders are entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the delivery of proxies or
consents.
No vote or consent of the Holders of the Common Securities will be required
for the Trust to redeem and cancel Common Securities or to distribute the Junior
Subordinated Debentures in accordance with the Declaration and the terms of the
Securities.
I-11
<PAGE>
8. AMENDMENTS TO DECLARATION AND INDENTURE.
(a) In addition to any requirements under Section 12.1 of the Declaration,
if any proposed amendment to the Declaration provides for, or the Regular
Trustees otherwise propose to effect, (i) any action that would adversely affect
the powers, preferences or special rights of the Securities, whether by way of
amendment to the Declaration or otherwise, or (ii) the dissolution, winding-up
or termination of the Trust, other than as described in Section 8.1 of the
Declaration, then the Holders of outstanding Securities voting together as a
single class, will be entitled to vote on such amendment or proposal (but not on
any other amendment or proposal) and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in
liquidation amount of the Securities then outstanding affected thereby;
PROVIDED, HOWEVER, if any amendment or proposal referred to in clause (i) above
would adversely affect only the Capital Securities or only the Common
Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a Majority in liquidation amount of such class of
Securities then outstanding.
(b) In the event the consent of the Property Trustee as the holder of the
Junior Subordinated Debentures is required under the Indenture with respect to
any amendment, modification or termination of the Indenture or the Junior
Subordinated Debentures, the Property Trustee shall request the written
direction of the Holders of the Securities with respect to such amendment,
modification or termination and shall vote with respect to such amendment,
modification or termination as directed by a Majority in liquidation amount of
the Securities then outstanding, voting together as a single class; PROVIDED,
HOWEVER, that where a consent under the Indenture would require the consent of
the relevant Super Majority, the Property Trustee may only give such consent at
the direction of the Holders of at least the proportion in liquidation amount of
the Securities then outstanding which the relevant Super Majority represents of
the aggregate principal amount of the Junior Subordinated Debentures then
outstanding; PROVIDED, FURTHER, that the Property Trustee shall not take any
action in accordance with the directions of the Holders of the Securities under
this Section 8(b) unless the Property Trustee has obtained an opinion of
nationally recognized independent tax counsel experienced in such matters to the
effect that for United States federal income tax purposes, such action will not
cause the Trust to be classified as other than a grantor trust.
9. PRO RATA.
A reference in these terms of the Securities to any distribution or
treatment as being "Pro Rata" shall mean pro rata to each Holder of Securities
according to the aggregate liquidation amount of the Securities held by the
relevant Holder in relation to the aggregate liquidation amount of all
Securities outstanding unless, in relation to a payment, an Event of Default
under the Declaration has occurred and is continuing, in which case any funds
available to make such payment shall be paid first in cash to each Holder of the
Capital Securities pro rata according to the aggregate liquidation amount of
Capital Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Capital Securities outstanding, and only after
satisfaction of all amounts
I-12
<PAGE>
owed to the Holders of the Capital Securities, to each Holder of Common
Securities pro rata according to the aggregate liquidation amount of Common
Securities held by the relevant Holder relative to the aggregate liquidation
amount of all Common Securities outstanding.
10. RANKING.
The Capital Securities rank PARI PASSU and payment thereon shall be made
Pro Rata with the Common Securities except that, where an Event of Default
occurs and is continuing, the rights of Holders of the Common Securities to
payment in respect of Distributions and payments upon liquidation, redemption
and otherwise are subordinated to the rights to payment of the Holders of the
Capital Securities.
11. LISTING.
The Regular Trustees shall use all reasonable best efforts to cause the
Capital Securities to be listed on the New York Stock Exchange.
12. ACCEPTANCE OF SECURITIES GUARANTEE AND INDENTURE.
Each Holder of Capital Securities and Common Securities, by the acceptance
thereof, agrees to the provisions of the Guarantee and the Common Securities
Guarantee, respectively, including the subordination provisions therein and to
the provisions of the Indenture.
13. NO PREEMPTIVE RIGHTS.
The Holders of the Securities shall have no preemptive rights to subscribe
for any additional securities.
14. MISCELLANEOUS.
These terms constitute a part of the Declaration. The Sponsor will provide
a copy of the Declaration, the Guarantee or the Common Securities Guarantee (as
may be appropriate), and the Indenture to a Holder without charge on written
request to the Sponsor at its principal place of business.
15. GOVERNING LAW.
These terms and the rights of the parties hereunder shall be governed by
and interpreted in accordance with the laws of the State of Delaware, and all
rights and remedies shall be governed by such laws without regard to principals
of conflict of laws.
I-13
<PAGE>
EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE
IF THE CAPITAL SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT THIS CAPITAL
SECURITY IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE DECLARATION
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY (THE "DEPOSITARY") OR A NOMINEE OF THE DEPOSITARY. THIS CAPITAL SECURITY
IS EXCHANGEABLE FOR CAPITAL SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE DECLARATION AND NO TRANSFER OF THIS CAPITAL SECURITY (OTHER THAN A
TRANSFER OF THIS CAPITAL SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CAPITAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE
TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CAPITAL SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CERTIFICATE NUMBER:
NUMBER OF CAPITAL SECURITIES:
CUSIP NO.:
A1-1
<PAGE>
Certificate Evidencing Capital Securities
of
UNIONBANCAL FINANCE TRUST I
7 3/8% Capital Securities
(liquidation amount $25 per Capital Security)
UnionBanCal Finance Trust I, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that
____________________ (the "Holder") is the registered owner of preferred
securities of the Trust representing undivided beneficial interests in the
assets of the Trust designated the 7 3/8% Capital Securities (liquidation amount
$25 per Capital Security) (the "Capital Securities"). The Capital Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer.
The designation, rights, privileges, restrictions, preferences and other
terms and provisions of the Capital Securities represented hereby are issued and
shall in all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of February 19, 1999, as the same may
be amended from time to time (the "Declaration"), including the designation of
the terms of the Capital Securities as set forth in Annex I to the Declaration.
Capitalized terms used herein but not defined shall have the meaning given
them in the Declaration. The Holder is entitled to the benefits of the Guarantee
to the extent provided therein. The Sponsor will provide a copy of the
Declaration, the Guarantee and the Indenture to the Holder without charge upon
written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal income
tax purposes, the Junior Subordinated Debentures as indebtedness and the Capital
Securities as evidence of indirect beneficial ownership in the Junior
Subordinated Debentures.
Unless the Property Trustee's Certificate of Authentication hereon has been
properly executed, these Capital Securities shall not be entitled to any benefit
under the Declaration or be valid or obligatory for any purpose.
A1-2
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this ____
day of __________, _____.
UnionBanCal Finance Trust I
By:
-----------------------------------------------
Name:
Title: Trustee
Solely as trustee and not in his individual
capacity
A1-3
<PAGE>
FORM OF CERTIFICATE OF AUTHENTICATION
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the within-mentioned
Declaration.
Dated: _____________ ____, _____
- -----------------------,
as Property Trustee
or as Authentication Agent
By:
-------------------------------
Authorized Signatory By:
-------------------------------
Authorized Signatory
A1-4
<PAGE>
FORM OF REVERSE OF SECURITY
Distributions payable on each Capital Security will be fixed at a rate per
annum of 7 3/8% (the "Coupon Rate") of the stated liquidation amount of $25 per
Capital Security, such rate being the rate of interest payable on the Junior
Subordinated Debentures to be held by the Property Trustee. Distributions in
arrears for more than one quarter will bear interest thereon compounded
quarterly at the Coupon Rate (to the extent permitted by applicable law). The
term "Distributions" as used herein includes such cash distributions and any
such interest payable unless otherwise stated. A Distribution is payable only to
the extent that payments are made in respect of the Junior Subordinated
Debentures held by the Property Trustee and to the extent the Property Trustee
has funds available therefor. The amount of Distributions payable for any period
will be computed for any full quarterly Distribution period on the basis of a
360-day year of twelve 30-day months, and for any period shorter than a full
quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
per 30-day month.
Except as otherwise described below, Distributions on the Capital
Securities will be cumulative, will accumulate from February 19, 1999 and will
be payable quarterly in arrears, on February 15, May 15, August 15, and November
15 of each year, commencing on May 15, 1999, which payment dates shall
correspond to the interest payment dates on the Junior Subordinated Debentures,
to Holders of record at the close of business on the regular record date for
such Distribution which shall be the close of business 15 days prior to such
Distribution payment date unless otherwise provided in the Declaration. The Debt
Issuer has the right under the Indenture to defer payments of interest by
extending the interest payment period from time to time on the Junior
Subordinated Debentures for a period not exceeding 20 consecutive quarters (an
"Extension Period"); PROVIDED THAT no Extension Period shall last beyond the
date of the maturity or any redemption date of the Junior Subordinated
Debentures and, as a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will continue to
accumulate with interest thereon (to the extent permitted by applicable law) at
the Coupon Rate compounded quarterly during any such Extension Period. Prior to
the termination of any such Extension Period, the Debt Issuer may further extend
such Extension Period; PROVIDED THAT such Extension Period together with all
such previous and further extensions thereof may not exceed 20 consecutive
quarters or extend beyond the maturity or any redemption date of the Junior
Subordinated Debentures. Upon the termination of any Extension Period and the
payment of all amounts then due, the Debt Issuer may commence a new Extension
Period, subject to the above requirements.
The Capital Securities shall be redeemable as provided in the Declaration.
A1-5
<PAGE>
FORM OF ASSIGNMENT FOR DEFINITIVE CAPITAL SECURITY
For value received _____________________________________ hereby sell(s),
assign(s) and transfer(s)
unto __________________________________________________________________________
(Please insert social security or other taxpayer identification number of
assignee.)
the within security and hereby irrevocably constitutes and appoints
______________________ attorney to transfer the said security on the books of
______________, with full power of substitution in the premises.
Dated:
-----------------------------
Signature(s)
------------------------------------
------------------------------------
------------------------------------
Signature Guarantee*
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of this Security in every particular without
alteration or enlargement or any change whatever.
- -------------
* (Signature must be guaranteed by an "eligible guarantor institution,"
that is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Conversion Agent, which requirements include
membership or participation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Conversion Agent in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
A1-6
<PAGE>
SCHEDULE I
CHANGES TO NUMBER OF CAPITAL SECURITIES IN GLOBAL SECURITY
<TABLE>
<CAPTION>
Number of Capital
Securities by which this
Global Security Is To Be Remaining Capital
Reduced or Increased, Securities Represented
and Reason for by this
Date Reduction or Increase Global Security Notation Made By
- ---------- -------------------------- ------------------------ -----------------
<S> <C> <C> <C>
</TABLE>
A1-7
<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD UNLESS SUCH OFFER AND SALE ARE REGISTERED UNDER OR ARE EXEMPT
FROM REGISTRATION UNDER THE SECURITIES ACT. THE TRANSFER OF THE SECURITY
EVIDENCED HEREBY IS ALSO SUBJECT TO THE RESTRICTIONS SET FORTH IN THE
DECLARATION REFERRED TO BELOW.
CERTIFICATE NUMBER:
NUMBER OF COMMON SECURITIES:
Certificate Evidencing Common Securities
of
UNIONBANCAL FINANCE TRUST I
7 3/8% Common Securities
(liquidation amount $25 per Common Security)
UnionBanCal Finance Trust I, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that
________________________________________ (the "Holder") is the registered owner
of common securities of the Trust representing undivided beneficial interests in
the assets of the Trust designated the 7 3/8% Common Securities (liquidation
amount $25 per Common Security) (the "Common Securities"). The Common Securities
are transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer.
The designation, rights, privileges, restrictions, preferences and other
terms and provisions of the Common Securities represented hereby are issued and
shall in all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of February 19, 1999, as the same may
be amended from time to time (the "Declaration"), including the designation of
the terms of the Common Securities as set forth in Annex I to the Declaration.
Capitalized terms used herein but not defined shall have the meaning given
them in the Declaration. The Holder is entitled to the benefits of the Common
Securities Guarantee to the extent
A2-1
<PAGE>
provided therein. The Sponsor will provide a copy of the Declaration, the Common
Securities Guarantee and the Indenture to a Holder without charge upon written
request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal income
tax purposes, the Junior Subordinated Debentures as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in the Junior
Subordinated Debentures.
A2-2
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this ____ day
of ________, _____.
UnionBanCal Finance Trust I
By:
---------------------------------------------
Name:
Title: Trustee
Solely as trustee and not in his individual
capacity
A2-3
<PAGE>
FORM OF REVERSE OF SECURITY
Distributions payable on each Common Security will be fixed at a rate per
annum, of 7 3/8% (the "Coupon Rate") of the stated liquidation amount of $25 per
Common Security, such rate being the rate of interest payable on the Junior
Subordinated Debentures to be held by the Property Trustee. Distributions in
arrears for more than one quarter will bear interest thereon compounded
quarterly at the Coupon Rate (to the extent permitted by applicable law). The
term "Distributions" as used herein includes such cash distributions and any
such interest payable unless otherwise stated. A Distribution is payable only to
the extent that payments are made in respect of the Junior Subordinated
Debentures held by the Property Trustee and to the extent the Property Trustee
has funds available therefor. The amount of Distributions payable for any period
will be computed for any full quarterly Distribution period on the basis of a
360-day year of twelve 30-day months, and for any period shorter than a full
quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
per 30-day month.
Except as otherwise described below, Distributions on the Common Securities
will be cumulative, will accumulate from February 19, 1999 and will be payable
quarterly in arrears, on February 15, May 15, August 15, and November 15 of each
year, commencing on May 15, 1999, which payment dates shall correspond to the
interest payment dates on the Junior Subordinated Debentures, to Holders of
record at the close of business on the regular record date for such Distribution
which shall be the close of business 15 days prior to such Distribution payment
date unless otherwise provided in the Declaration. The Debt Issuer has the right
under the Indenture to defer payments of interest by extending the interest
payment period from time to time on the Junior Subordinated Debentures for a
period not exceeding 20 consecutive quarters (each an "Extension Period"),
PROVIDED THAT no Extension Period shall last beyond the date of maturity of the
Junior Subordinated Debentures and, as a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accumulate with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Debt Issuer may further extend such Extension Period; PROVIDED THAT such
Extension Period together with all such previous and further extensions thereof
may not exceed 20 consecutive quarters or extend beyond the date of maturity of
the Junior Subordinated Debentures. Upon the termination of any Extension Period
and the payment of all amounts then due, the Debt Issuer may commence a new
Extension Period, subject to the above requirements.
The Common Securities shall be redeemable as provided in the Declaration.
A2-4
<PAGE>
FORM OF ASSIGNMENT FOR SECURITY THEREOF
For value received _____________________________________ hereby sell(s),
assign(s) and transfer(s)
unto __________________________________________________________________________
(Please insert social security or other taxpayer identification number of
assignee.)
the within security and hereby irrevocably constitutes and appoints
______________________ attorney to transfer the said security on the books of
the Company, with full power of substitution in the premises.
Dated:
-----------------------------
Signature(s)
------------------------------------
------------------------------------
------------------------------------
Signature Guarantee*
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of this Security in every particular without
alteration or enlargement or any change whatever.
- -----------------
* (Signature must be guaranteed by an "eligible guarantor institution,"
that is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Conversion Agent, which requirements include
membership or participation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Conversion Agent in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
A2-5
<PAGE>
EXHIBIT 5.1
[Letterhead of Skadden, Arps, Slate, Meagher & Flom LLP]
February 19, 1999
UnionBanCal Corporation
400 California Street
San Francisco, CA 94104
Ladies and Gentlemen:
We have acted as special counsel to UnionBanCal Corporation, a
California corporation (the "Company"), UnionBanCal Finance Trust I ("Finance
Trust I"), UnionBanCal Finance Trust II, UnionBanCal Finance Trust III and
UnionBanCal Finance Trust IV, each a statutory business trust created under the
Business Trust Act of the State of Delaware (together with Finance Trust I,
each, a "Trust," and collectively, the "Trusts"), in connection with the
preparation of the Registration Statements on Form S-3 (Nos. 333-67581,
333-67581-01, 333-67581-02, 333-67581-03 and 333-67581-04 (such Registration
Statements, as amended, being hereinafter referred to as the "Registration
Statement") filed by the Company and the Trusts with the Securities and Exchange
Commission (the "Commission") with respect to the registration under the
Securities Act of 1933, as amended (the "Act"), of (i) the Company's (a)
unsecured senior debt securities, senior subordinated debt securities,
subordinated debt securities and junior subordinated debt securities
(collectively, the "Debt Securities"), which may be issued pursuant to an
indenture, between the Company and The First National Bank of Chicago, as
Trustee, (b) shares of Preferred Stock, which may be represented by depositary
shares evidenced by depositary receipts, which may be issued under deposit
agreements to be entered into by the Company in respect of the Depositary
Shares; (c) shares of Common Stock, and (d) guarantees of the Preferred
Securities of the Trusts (the "Preferred Securities Guarantee") to be issued
under one or more guarantee agreements to be entered into by the Company; and
(ii) the Trusts' preferred securities (the "Preferred Securities") that are to
be issued by each Trust pursuant to its respective Amended and Restated
Declaration of Trust.
<PAGE>
UnionBanCal Corporation
February 19, 1999
Page 2
On February 11, 1999, the Company and Finance Trust I entered into an
Underwriting Agreement (the "Underwriting Agreement") with certain underwriters
(the "Underwriters"), pursuant to which the Underwriters purchased 14,000,000 of
Finance Trust I's Preferred Securities, designated as its 7 3/8% Capital
Securities (the "Capital Securities"). In connection therewith, the Company
purchased 432,990 of Finance Trust I's 7 3/8% Common Securities (the "Common
Securities"). Finance Trust I is to use the proceeds of the sale of the Capital
Securities and the Common Securities to purchase $360,824,750 aggregate
principal amount of the Company's Debt Securities, designated the 7 3/8% Junior
Subordinated Deferrable Interest Debentures due 2029 (the "Junior Subordinated
Debentures").
This opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Registration
Statement; (ii) the Indenture, dated as of February 19, 1999, between the
Company and The First National Bank of Chicago, as indenture trustee, and the
related Officer's Certificate, dated February 19, 1999 (collectively, the
"Indenture"); (iii) the Debenture Purchase Agreement, dated February 11, 1999,
between the Company and Finance Trust I (the "Debenture Purchase Agreement");
(iv) the Guarantee Agreement, dated February 19, 1999, between the Company and
The First National Bank of Chicago, as guarantee trustee (the "Guarantee
Agreement"); (v) the Amended and Restated Declaration of Trust of Finance Trust
I, dated February 19, 1999, among the Company, as Sponsor, the Trustees as
defined therein, and the holders, from time to time, of undivided beneficial
interests in Finance Trust I (the "Amended Declaration"); (vi) the Underwriting
Agreement; (vii) the Amended and Restated Articles of Incorporation and the
Bylaws of the Company as currently in effect; (viii) the Certificate of Trust of
Finance Trust I filed with the Secretary of State of the State of Delaware;
(xi) specimens of the Capital Securities and the Junior Subordinated Debentures;
and (x) certain resolutions of the Board of Directors of the Company and the
Pricing Committee thereof, relating to the transactions contemplated by the
Registration Statement, the Trusts and related matters. We have also examined
originals or copies, certified or otherwise identified to our
<PAGE>
UnionBanCal Corporation
February 19, 1999
Page 3
satisfaction, of such other documents, certificates and records as we have
deemed necessary or appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of executed documents, we have assumed that the parties thereto,
other than the Company and the Trusts, had the power, corporate or other, to
enter into and perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and execution and
delivery by such parties of such documents and the validity and binding effect
thereof on such parties.
As to any facts material to the opinions expressed herein that we have
not independently established or verified, we have relied upon oral or written
statements and representations of officers and other representatives of the
Company, Finance Trust I and others.
We do not express any opinion as to the laws of any jurisdiction other
than the laws of the States of California, Delaware and New York.
Based upon and subject to the limitations, qualifications, exceptions
and assumptions set forth herein, we are of the opinion that:
1. The issuance and sale of the Junior Subordinated Debentures have
been duly authorized by the Company, and the Junior Subordinated Debentures,
when executed and authenticated in accordance with the terms of the Indenture
and delivered and paid for in accordance with the Debenture Purchase Agreement,
and so long as the terms of the Junior Subordinated Debentures do not violate
any applicable law or result in a default under or breach of any agreement or
instrument binding upon the Company, and so long as the terms of the Junior
Subordinated Debentures comply with any requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company, will be
valid and binding obligations of the Company
<PAGE>
UnionBanCal Corporation
February 19, 1999
Page 4
entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, except (a) to the extent that enforcement thereof
may be limited by (1) bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or similar laws now or hereinafter in effect relating to or
affecting the enforcement of creditors' rights generally, (2) general principles
of equity (regardless of whether enforceability is considered in a proceeding at
law or in equity), and (b) we express no opinion regarding the enforceability or
effect of Section 6.6 of the Indenture.
2. The Capital Securities have been duly authorized for issuance by
the Amended Declaration and when issued, executed and authenticated in
accordance with the Amended Declaration and delivered and paid for in accordance
with the Underwriting Agreement, subject to the qualification set forth herein,
will be validly issued, fully paid and nonassessable preferred undivided
beneficial interests in the assets of Finance Trust I. We bring to your
attention, however, that the holders of the Capital Securities of Finance Trust
I may be obligated, pursuant to the Amended Declaration, to make payments,
including (a) to provide indemnity and/or security in connection with, and pay
taxes or governmental charges arising from, transfers of Capital Securities and
the issuance of replacement Capital Securities and (ii) to provide security and
indemnity in connection with requests of or directions to the Property Trustee
(as defined in the Amended Declaration) to exercise its rights and powers under
the Amended Declaration.
3. The Guarantee Agreement has been duly authorized, executed and
delivered by the Company, and, so long as the terms of the Guarantee Agreement
do not violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company, and so long as the terms of
the Guarantee Agreement comply with any requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company, is a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except (a) to the extent that enforcement thereof may
be limited by (1) bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or similar laws now or hereinafter in effect relating to or affecting
the enforcement of creditors' rights generally, (2) general principles of equity
(regardless of whether enforceability is
<PAGE>
UnionBanCal Corporation
February 19, 1999
Page 5
considered in a proceeding at law or in equity), and (b) we express no opinion
regarding the enforceability or effect of Section 8.2 of the Guarantee
Agreement.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement. We also consent to the reference to
our firm under the caption "Legal Matters" in the Registration Statement. In
giving this consent, we do not thereby admit that we are included in the
category of persons whose consent is required under Section 7 of the Act or the
rules and regulations of the Commission.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
