<PAGE>
As filed with the Securities and Exchange Commission on September 26, 1996.
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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U. S. BANCORP
(Exact name of registrant as specified in charter)
Oregon 93-0571730
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
111 S.W. Fifth Avenue
Portland, Oregon 97204
Telephone (503) 275-6111
(Address and telephone number of principal executive offices)
DWIGHT V. BOARD
Executive Vice President
U. S. BANCORP
111 S.W. Fifth Avenue
Portland, Oregon 97204
Telephone (503) 275-3706
(Name, address, and telephone number of agent for service)
---------------------------
Copies to:
Miller, Nash, Wiener, Hager & Carlsen LLP Brown & Wood LLP
111 S.W. Fifth Avenue 555 California Street
Portland, Oregon 97204-3699 San Francisco, CA. 94104-1715
Attn: Mary Ann Frantz Attn: Paul C. Pringle
(503) 224-5858 (415) 772-1200
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Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this registration statement as
determined in light of market conditions and other factors.
---------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box.[ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Each Maximum Maximum
Class of Amount to be Offering Aggregate Amount of
Securities to be Registered Price Per Offering Registration
Registered (1) Unit(2) Price(2) Fee
- -----------------------------------------------------------------------------
Debt Securities $1,000,000,000 100% $1,000,000,000 $344,828
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(1) Or an equivalent amount in another currency or currencies or, if any Debt
Securities are issued at a discount, such greater amount as shall result
in net proceeds of $1,000,000,000 to the registrant.
(2) Estimated solely for purposes of calculating the registration fee.
------------------------------
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this registration
statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
==============================================================================
<PAGE>
PROSPECTUS
U. S. BANCORP
DEBT SECURITIES
U. S. Bancorp intends to offer from time to time in one or more
series its unsecured debt securities, which may be senior (the "Senior
Securities") or subordinated (the "Subordinated Securities," and together with
the Senior Securities, the "Debt Securities"), with an aggregate initial
public offering price of up to $1,000,000,000 (or its equivalent in any other
currency or composite currency) in amounts, at prices and on terms to be
determined at the time of sale and set forth in one or more supplements to
this Prospectus (a "Prospectus Supplement").
The Senior Securities will rank equally and ratably with all other
unsecured and unsubordinated indebtedness of U. S. Bancorp. The Subordinated
Securities will be subordinated to all existing and future Senior Indebtedness
of U. S. Bancorp, as defined. See "Description of Debt Securities."
The specific title, aggregate principal amount, maturity, rate and
time of payment of interest (if any), terms for redemption, terms for sinking
fund payments, the initial public offering price, and any other special terms
of a specific series of Debt Securities being offered ("Offered Debt
Securities") are set forth in the accompanying Prospectus Supplement. The
Offered Debt Securities will be denominated in United States dollars unless
another currency, which may be a composite currency such as the European
Currency Unit, is specified in the Prospectus Supplement.
The Debt Securities may be sold to underwriters for public offering
pursuant to terms of offering described in the Prospectus Supplement. In
addition, the Debt Securities may be sold through agents designated from time
to time by U. S. Bancorp, including its banking affiliates. If any
underwriters or agents are involved in the sale of the Offered Debt
Securities, their names and any applicable fee, commission, purchase price or
discount arrangements with them will be set forth, or will be calculable from
the information set forth, in the Prospectus Supplement. See "Plan of
Distribution."
This Prospectus may not be used to consummate sales of Offered Debt
Securities unless accompanied by a Prospectus Supplement.
The Debt Securities are unsecured obligations of U. S. Bancorp and
are not savings accounts, deposits or other obligations of a bank or savings
association and are not insured by the Federal Deposit Insurance Corporation,
the Bank Insurance Fund or any other governmental agency.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------------
The date of this Prospectus is _____________, 1996.
<PAGE>
AVAILABLE INFORMATION
U. S. Bancorp is subject to the informational requirements of the
Securities Exchange Act of 1934 ("Act") and in accordance therewith files
reports and other information with the Securities and Exchange Commission
("Commission"). Reports, proxy statements and other information filed by
U. S. Bancorp can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549; Seven World Trade Center, Suite 1300, New York, New York 10048; and 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material can be obtained from the Public Reference Section of the Commission,
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In
addition, the Commission maintains an Internet Web site that contains reports,
proxy and information statements and other information regarding registrants
that file electronically with the Commission, including U. S. Bancorp. The
address of such Internet Web site is http://www.sec.gov. As permitted by
rules and regulations of the Commission, this Prospectus omits certain
information set forth in the Registration Statement and exhibits thereto
relating to the Debt Securities which U. S. Bancorp has filed with the
Commission under the Securities Act of 1933 and to which reference is hereby
made.
_____________
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
U. S. Bancorp incorporates herein by reference its annual report on
Form 10-K for the year ended December 31, 1995, its quarterly reports on
Form 10-Q for the quarters ended March 31, 1996 and June 30, 1996 (as amended
by Amendment No. 1 on Form 10-Q/A filed August 23, 1996), and its current
reports on Form 8-K dated December 26, 1995 (as amended by Amendment No. 1 on
Form 8-K/A filed February 6, 1996), January 31, 1996, March 11, 1996, and
June 6, 1996.
All documents filed by U. S. Bancorp pursuant to Section 13(a),
13(c), 14 or 15(d) of the Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Debt Securities to which this
Prospectus relates shall be deemed to be incorporated by reference into this
Prospectus.
U. S. Bancorp will provide without charge to each person, including
any beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of any such person, a copy of any or all of the
foregoing documents incorporated by reference herein, other than certain
exhibits to such documents. Requests should be directed to U. S. Bancorp,
Investor Relations, P.O. Box 8837, Portland, Oregon 97208, telephone (503)
275-5834.
U. S. BANCORP
U. S. Bancorp is a regional multi-bank holding company
headquartered in Portland, Oregon. At June 30, 1996, U. S. Bancorp was among
the 30 largest bank holding companies in the United States in terms of total
assets, with total consolidated assets of $32.8 billion, deposits of $23.9
billion, and total shareholders' equity of $2.9 billion.
U. S. Bancorp is engaged in a general retail and commercial banking
business in the states of Oregon, Washington, Idaho, California, Nevada, and
Utah through its banking subsidiaries. Its principal banking subsidiaries are
United States National Bank of Oregon ("U. S. Bank of Oregon"), with $13.4
billion in total assets at June 30, 1996, U. S. Bank of Washington, National
Association ("U. S. Bank of Washington"), with total assets of $9.3 billion at
June 30, 1996, and U. S. Bank of Idaho. U. S. Bank of Idaho was formed by the
merger of U. S. Bank of Idaho, National Association, and West One Bank, Idaho,
in August 1996. West One Bank, Idaho, had total assets of $4.1 billion at
June 30, 1996. At June 30, 1995, in terms of deposits, U. S. Bank of Oregon
was the largest commercial bank in Oregon and the 63rd largest commercial bank
in the United States, U. S. Bank of Washington was the third largest
commercial bank in Washington and the 101st largest commercial bank in the
United States, and West One Bank, Idaho was the largest commercial bank in
Idaho and the 142nd largest commercial bank in the United States.
Other subsidiaries of U. S. Bancorp provide financial services
related to banking, including lease financing, consumer and commercial
finance, discount brokerage, investment advisory services, and insurance
agency and credit life insurance services. U. S. Bancorp's principal
activities are located in the Pacific Northwest, but it has operations
throughout the Far West and, to a lesser extent, the rest of the United
States. The principal executive offices of U. S. Bancorp are located at
111 S.W. Fifth Avenue, Portland, Oregon 97204, telephone number
(503) 275-6111.
The principal sources of U. S. Bancorp's revenues are dividends and
fees from its subsidiaries. There are various legal limitations on the extent
to which U. S. Bancorp's bank subsidiaries may extend credit, pay dividends,
or otherwise supply funds to U. S. Bancorp or U. S. Bancorp's other
affiliates. In particular, U. S. Bancorp's bank subsidiaries are subject to
certain restrictions imposed by federal law on extensions of credit to
U. S. Bancorp or its affiliates, on investments in stock or other securities
thereof and on the taking of such securities as collateral for loans. Such
restrictions prohibit U. S. Bancorp or such other affiliates from borrowing
from U. S. Bancorp's bank subsidiaries unless the loans are secured by
specified collateral. Further, such secured loans and investments by a
U. S. Bancorp bank subsidiary are limited in amount as to U. S. Bancorp or to
any other such affiliate to 10% of the bank subsidiary's capital stock and
surplus and as to U. S. Bancorp and all such affiliates to an aggregate of 20%
of the bank subsidiary's capital stock and surplus.
In addition, there are certain limitations on the payment of
dividends to U. S. Bancorp by its bank subsidiaries. A national bank may not
pay dividends in an amount greater than its net profits then on hand after
deducting statutory bad debt in excess of the bank's allowance for loan
losses. The prior approval of the United States Comptroller of the Currency
(the "Comptroller") is required if the total of all dividends declared by a
national bank subsidiary in any calendar year will exceed the total of such
subsidiary's net profits (as defined by regulation) for that year combined
with its retained net profits for the preceding two calendar years, less any
required transfers to surplus or to a fund for the retirement of any preferred
stock. As of December 31, 1995, U. S. Bancorp's banking subsidiaries could
have declared dividends without approval of the Comptroller of up to an
aggregate of $313 million. The payment of dividends by U. S. Bancorp's
national bank subsidiaries may be affected by other factors, such as
requirements for the maintenance of adequate capital. The Comptroller also
has authority to prohibit a national bank from engaging in what, in the
Comptroller's opinion, constitutes an unsafe or unsound practice in conducting
its business. In addition, the Comptroller has issued a policy statement
which provides that national banks should generally pay dividends only out of
current operating earnings. U. S. Bancorp's nonbank subsidiaries are also
subject to limitations on the payment of dividends. In addition, under the
Federal Deposit Insurance Corporation Improvement Act of 1991, an FDIC-insured
depository institution cannot make a capital distribution (including a payment
of dividends) or pay any management fees to its holding company or pay any
dividend if it is undercapitalized or if such payment would cause it to become
undercapitalized.
In the event that a depository institution subsidiary becomes
undercapitalized (as that term is defined by the federal bank regulatory
agencies), U. S. Bancorp may be required to guarantee compliance by the
subsidiary with a capital restoration plan. U. S. Bancorp's aggregate
liability under any such guarantee may not exceed the lesser of 5% of the
subsidiary's total assets when it became undercapitalized or the amount of the
capital deficiency at such time as it fails to comply with the plan.
USE OF PROCEEDS
U. S. Bancorp intends to use the net proceeds from the sale of the
Debt Securities for general corporate purposes, including investments in, or
extensions of credit to, its existing and future subsidiaries, the acquisition
of other banking and financial services businesses, repurchases of outstanding
shares of U. S. Bancorp common stock, and repayment of outstanding borrowings.
The precise amounts and timing of the application of proceeds will depend on
various factors existing at the time of offering of the Offered Debt
Securities, including the subsidiaries' funding requirements and the
availability of other funds. Pending such use, the proceeds may be
temporarily invested in short-term obligations.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratios of earnings
to fixed charges for U. S. Bancorp for the periods indicated.
<TABLE>
<CAPTION>
Six Months
Ended
Year Ended December 31, June 30,
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1991 1992 1993 1994 1995 1995 1996
----- ----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits...... 2.17x 2.77x 3.74x 2.58x 2.72x 2.88x 3.77x
Including interest on deposits...... 1.30x 1.47x 1.71x 1.48x 1.51x 1.59x 1.73x
</TABLE>
For purposes of computing the ratios, earnings represent income
before income taxes, accounting changes and fixed charges, less capitalized
interest. Fixed charges represent interest, whether expensed or capitalized,
including interest on deposits where indicated, imputed interest on capital
leases and approximately one-third of all other rent expense (such amount
approximating the interest component of such expense), but excluding interest
income on federal funds sold, which approximates interest expense related to
federal funds purchased transactions having a purpose other than to fund
operations.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets
forth certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Offered Debt
Securities offered by any Prospectus Supplement and the extent, if any, to
which such general provisions may apply to such Offered Debt Securities will
be described in the Prospectus Supplement relating to such Offered Debt
Securities.
The Senior Securities are to be issued under an indenture (the
"Senior Indenture") between U. S. Bancorp and the trustee named in the
applicable Prospectus Supplement as trustee (the "Senior Trustee"). The
Subordinated Securities are to be issued under an indenture (the "Subordinated
Indenture") between U. S. Bancorp and the trustee named in the applicable
Prospectus Supplement as trustee (the "Subordinated Trustee," and together
with the Senior Trustee, the "Trustees"). The forms of the Senior Indenture
and the Subordinated Indenture (collectively, the "Indentures") are exhibits
to the Registration Statement. The following summaries of certain provisions
of the Indentures do not purport to be complete and are qualified in their
entirety by reference to the provisions of the Indentures. Numerical
references in parentheses below are to sections of the Indentures. Wherever
particular sections or defined terms of the Indentures are referred to, it is
intended that such sections or defined terms shall be incorporated herein by
reference.
Because U. S. Bancorp is a holding company, its rights and the
rights of its creditors, including the Holders of Debt Securities, to
participate in the assets of any subsidiary upon the latter's liquidation or
reorganization will be subject to the prior claims of the subsidiary's
creditors (including depositors in the case of bank subsidiaries) except to
the extent that U. S. Bancorp may itself be a creditor with recognized claims
against the subsidiary.
General
The amount of Debt Securities offered by this Prospectus will be
limited to the amount set forth on the cover of this Prospectus. Each
Indenture provides that Debt Securities in an unlimited amount may be issued
thereunder from time to time in one or more series. (Section 301).
The Senior Securities will be unsecured and will rank equally and
ratably with all other unsecured and unsubordinated indebtedness of
U. S. Bancorp. The Subordinated Securities will be unsecured and, in general,
will rank equally and ratably with other subordinated debt of U. S. Bancorp
and, together with such other subordinated debt, will be subordinated and
junior in right of payment to the prior payment in full of the Senior
Indebtedness of U. S. Bancorp as described below under "Subordination."
The Prospectus Supplement will describe the following terms of the
Offered Debt Securities: (1) the title of the Offered Debt Securities; (2) any
limit on the aggregate principal amount of the Offered Debt Securities;
(3) the date or dates on which the Offered Debt Securities will mature;
(4) the rate or rates per annum at which the Offered Debt Securities will bear
interest, if any, or the manner in which such rates are determined and the
date from which such interest, if any, will accrue; (5) the dates on which
such interest, if any, on the Offered Debt Securities will be payable, the
record dates for such interest payment dates, if any, and the rate or rates of
interest, if any, payable on overdue installments of interest on or principal
of (and premium, if any, on) the Offered Debt Securities; (6) the currency or
currency unit, if other than United States dollars, of payment of principal
of, and premium and interest, if any, on the Offered Debt Securities; (7) if
the Offered Debt Securities are to be issued in the form of one or more global
securities (a "Global Security"), the identity of the depositary for such
Global Security or Securities; (8) any sinking fund or analogous provisions;
(9) any mandatory or optional redemption terms; (10) any additions to, or
modifications or deletions of, any Events of Default or Defaults (as such
terms are defined in the applicable Indenture), or covenants and the remedies
with respect thereto provided for with respect to the Offered Debt Securities;
and (11) any other terms of the Offered Debt Securities.
Unless otherwise specified in the applicable Prospectus Supplement,
principal of, and premium and interest, if any, on the Offered Debt Securities
will be payable at the office of such paying agent or paying agents as
U. S. Bancorp may appoint from time to time, except that payment of interest,
if any, may be made at the option of U. S. Bancorp by check mailed to the
address of the person entitled thereto as it appears in the register for the
Offered Debt Securities. (Sections 301, 307, and 1002).
Unless otherwise indicated in the Prospectus Supplement, the
Offered Debt Securities will be issued only in fully registered form without
coupons and, if denominated in U.S. dollars, will be issued in denominations
of $1,000 or any integral multiple thereof. Debt Securities may be
surrendered for transfer or exchange at the office of the Instrument Registrar
or at the office or agency maintained by the Company in each Place of Payment
designated by the Company with respect to such series of Debt Securities. No
service charge will be made for any transfer or exchange of Debt Securities of
any series but U. S. Bancorp may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
U. S. Bancorp will not be required (i) to issue, register the transfer of or
exchange any Debt Securities of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Debt Securities of that series selected for redemption and
ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Debt Security so selected for
redemption in whole or in part, except the unredeemed portion of Debt
Securities being redeemed in part. (Sections 302, 305, and 1002).
Debt Securities of a single series may be issued at various times
with different maturity dates, may bear interest at different rates and may
otherwise vary, all as provided in the Indentures. (Sections 301 and 303).
All moneys paid by U. S. Bancorp to a Trustee or any paying agent
for the payment of principal of and premium and interest on any Debt Security
which remain unclaimed for two years after such principal, premium or interest
shall have become due and payable may be repaid to U. S. Bancorp and
thereafter the Holder (as defined in the Indentures) of such Debt Security
will look only to U. S. Bancorp for payment thereof. (Section 1003).
If any Debt Securities are payable in a currency or currency unit
other than U.S. dollars, the special federal income tax considerations
applicable to such Debt Securities will be described in the Prospectus
Supplement relating thereto.
The Debt Securities may be issued as original issue discount Debt
Securities (bearing no interest or bearing interest at a rate which at the
time of issue is below market rates) to be sold at a substantial discount
below their stated principal amount. If any Debt Securities are issued as
original issue discount Debt Securities, the special federal income tax and
other considerations applicable to such Debt Securities will be described in
the Prospectus Supplement relating thereto.
Global Securities
The Offered Debt Securities may be issued in whole or in part in
the form of one or more Global Securities that will be deposited with, or on
behalf of, a depositary (the "Depositary") identified in the Prospectus
Supplement relating to such Offered Debt Securities. Unless and until it is
exchangeable in whole or in part for Debt Securities in definitive form, a
Global Security may not be transferred except as a whole by the Depositary for
such Global Security 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 of such Depositary or a nominee
of such successor. (Sections 203, 302, 303 and 305).
The specific terms of the depositary arrangement, if any, with
respect to a series of Offered Debt Securities will be described in the
Prospectus Supplement relating to such series. U. S. Bancorp anticipates that
the following provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a Global Security will be
limited to persons that have accounts with the Depositary for such Global
Security or its nominee ("Participants") or persons that may hold interests
through Participants. Such accounts shall be designated by the underwriters
or agents with respect to the Offered Debt Securities underwritten or
solicited by them. U. S. Bancorp expects that upon the issuance of a Global
Security, the Depositary for such Global Security will credit, on its
book-entry registration and transfer system, the Participants' accounts with
the respective principal amounts of the Offered Debt Securities represented by
such Global Security. Ownership of beneficial interests in such Global
Security will be shown on, and the transfer of such ownership interests will
be effected only through, records maintained by the Depositary (with respect
to interests of Participants) and on the records of Participants (with respect
to interests of persons held through Participants). The laws of some states
may require that certain purchasers of securities take physical delivery of
such securities in definitive form. Such limits and such laws may impair the
ability to own, transfer or pledge beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is
the registered owner of such Global Security, such Depositary or such nominee,
as the case may be, will be considered the sole owner or Holder of the Debt
Securities represented by such Global Security for all purposes under the
applicable Indenture. Except as provided below, owners of beneficial
interests in a Global Security will not be entitled to have the Debt
Securities represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of the Debt Securities
in definitive form and will not be considered the owners or Holders thereof
under the applicable Indenture. Accordingly, each person owning a beneficial
interest in such a Global Security must rely on the procedures of the
Depositary and, if such person is not a Participant, on the procedures of the
Participant through which such person owns its interest, to exercise any
rights of a Holder under the applicable Indenture. U. S. Bancorp understands
that under existing industry practices, in the event that U. S. Bancorp
requests any action of Holders or that an owner of a beneficial interest in
such a Global Security desires to give or take any action which a Holder is
entitled to give or take under the applicable Indenture, the Depositary would
authorize the Participants holding the relevant beneficial interests to give
or take such action, and such Participants would authorize beneficial owners
owning through such Participants to give or take such action or would
otherwise act upon the instructions of beneficial owners owning through them.
Payment of principal of, and premium and interest, if any, on, Debt
Securities registered in the name of a Depositary or its nominee will be made
to the Depositary or its nominee, as the case may be, as the registered owner
of the Global Security representing such Debt Securities. None of
U. S. Bancorp, the applicable Trustee, any paying agent or any other agent of
U. S. Bancorp or such Trustee will have any responsibility or liability for
any aspect of the records relating to or payments made on account of
beneficial ownership interests in the Global Security for such Debt Securities
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests. (Section 308).
U. S. Bancorp expects that upon receipt of any payment of principal
of, or premium or interest on, a Global Security, the Depositary will
immediately credit Participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of such Global Security as shown on the records of the Depositary. Payments
by Participants to owners of beneficial interests in such Global Security held
through such Participants will be the sole responsibility of such
Participants, as is now the case with securities held for the accounts of
customers registered in "street name."
A Global Security is exchangeable for definitive Debt Securities in
registered form only if (i) the Depositary for any Debt Securities represented
by a Global Security notifies U. S. Bancorp that it is unwilling or unable to
continue as Depositary or ceases to be a clearing agency registered under the
Act and a successor Depositary is not appointed by U. S. Bancorp within 90
days after receiving such notice or becoming aware that the Depositary is no
longer so registered, (ii) U. S. Bancorp in its sole discretion determines
that such Global Security shall be exchangeable for definitive Debt Securities
in registered form and notifies the applicable Trustee thereof, or (iii) there
shall have occurred and be continuing an Event of Default or Default or an
event which after notice or lapse of time would be an Event of Default or
Default, as applicable, with respect to the Debt Securities represented by
such Global Security. U. S. Bancorp will issue Debt Securities in definitive
form upon registration of transfer of, or in exchange for, any Global Security
exchangeable pursuant to the preceding sentence. (Section 305).
Covenants Contained in Indentures
The Senior Indenture provides that U. S. Bancorp, subject to the
provisions described under "Consolidation, Merger, Conveyance, Transfer or
Lease," will not sell, transfer, or otherwise dispose of, or permit U. S. Bank
of Oregon to issue, any shares of Voting Stock of U. S. Bank of Oregon, and
will not permit U. S. Bank of Oregon to merge or consolidate or convey its
properties substantially as an entirety, unless U. S. Bank of Oregon or the
surviving corporation or transferee, as the case may be, is a Controlled
Subsidiary of U. S. Bancorp. The Senior Indenture further provides that
U. S. Bancorp will not grant a security interest in any shares of Voting Stock
of U. S. Bank of Oregon. (Section 1007 of the Senior Indenture). "Controlled
Subsidiary" means any corporation more than 80 percent of the outstanding
Voting Stock of which is owned by U. S. Bancorp. (Section 101 of the Senior
Indenture).
The Subordinated Indenture does not contain the foregoing covenant.
U. S. Bancorp is not restricted by the Indentures from incurring,
assuming or becoming liable for any type of debt or other obligations, from
creating liens on its property for any purpose or from paying dividends or
making distributions on its capital stock or purchasing or redeeming its
capital stock. The Indentures do not require the maintenance of any financial
ratios or specified levels of net worth or liquidity. In addition, the
Indentures do not contain any provision which would require U. S. Bancorp to
repurchase or redeem or otherwise modify the terms of any of its Debt
Securities upon a change in control or other events involving U. S. Bancorp
which may adversely affect the creditworthiness of the Debt Securities.
Subordination
The Subordinated Securities will be subordinate and junior in right
of payment, to the extent set forth in the Subordinated Indenture, to all
Senior Indebtedness (as defined below) of U. S. Bancorp. In the event that
U. S. Bancorp defaults in the payment of any principal, premium, if any, or
interest, if any, on any Senior Indebtedness when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by
declaration of acceleration or otherwise, or if any event of default with
respect to any Senior Indebtedness shall have occurred and be continuing, or
would occur as a result of any payment in respect of the Subordinated
Securities, then, upon written notice to U. S. Bancorp of such default or
event of default, unless and until such default or event of default shall have
been cured or waived or shall have ceased to exist, no direct or indirect
payment (in cash, property, securities, by set-off or otherwise) may be made
or agreed to be made for principal, premium, if any, or interest, if any, on
the Subordinated Securities, or in respect of any redemption, retirement,
purchase or other acquisition of any of the Subordinated Securities, or as a
sinking fund for any Subordinated Securities. (Section 1301 of the
Subordinated Indenture). "Senior Indebtedness" of U. S. Bancorp means the
principal of (and premium, if any) and unpaid interest on (i) all indebtedness
of U. S. Bancorp for money borrowed (including any deferred obligation for the
payment of the purchase price of property or assets and obligations arising
from guarantees by U. S. Bancorp of the indebtedness of others), (ii)
obligations of, or any such obligation guaranteed by, U. S. Bancorp as lessee
under leases required to be capitalized on the balance sheet of the lessee
under generally accepted accounting principles and leases of property or
assets made as part of any sale and leaseback transaction to which
U. S. Bancorp is a party, (iii) obligations of U. S. Bancorp under letters of
credit, and (iv) any indebtedness of U. S. Bancorp under or other obligations
of U. S. Bancorp to make payment pursuant to the terms of commodity contracts,
interest rate and currency swap agreements, cap, floor and collar agreements,
currency spot and forward contracts, and other similar agreements or
arrangements, whether now outstanding or subsequently created, assumed or
incurred, and any deferrals, renewals, or extensions of any such Senior
Indebtedness, other than (x) any obligation as to which, in the instrument
creating or evidencing the same or pursuant to which the same is outstanding,
it is provided that such obligation is not to be superior in right of payment
to the Subordinated Securities, (y) U. S. Bancorp's 8 1/8% Subordinated Notes
due 2002, its 7% Subordinated Notes due 2003, its 6 3/4% Subordinated Notes
due October 15, 2005, and its 7 1/2% Subordinated Debentures Due June 1, 2026,
and (z) the Subordinated Securities. (Section 101 of the Subordinated
Indenture). As of June 30, 1996, U. S. Bancorp had approximately $511.6
million of Senior Indebtedness outstanding.
U. S. Bancorp has outstanding subordinated debt in the aggregate
principal amount of $800 million pursuant to an Indenture dated as of May 15,
1992, as amended by a First Supplemental Indenture dated as of March 15, 1993
(the "1992 Indenture"), between U. S. Bancorp and Bankers Trust Company, as
trustee. The definition of senior indebtedness with respect to subordinated
indebtedness of U. S. Bancorp issued under the 1992 Indenture prior to
March 15, 1993, included only indebtedness of U. S. Bancorp for money
borrowed, other than obligations ranking on a parity with or junior to such
subordinated indebtedness. The 1993 amendment to the 1992 Indenture changed
the definition of senior indebtedness to encompass a broader range of
instruments and obligations. The amended definition in the 1992 Indenture
corresponds to the definition in the Subordinated Indenture. Prior to
amendment of the 1992 Indenture, subordinated debt in the aggregate principal
amount of $150 million was issued. Consequently, the holders of Subordinated
Securities could be subordinated to greater amounts of senior indebtedness of
U. S. Bancorp than holders of such $150 million of previously issued
subordinated debt, such that, under the circumstances described in the
following paragraph, Holders of Subordinated Securities may receive less,
ratably, than holders of such previously issued subordinated debt.
In the event of any insolvency, bankruptcy, receivership,
conservatorship, reorganization, readjustment of debt, assignment for the
benefit of creditors, marshalling of assets and liabilities or similar
proceeding relating to, or any liquidation, dissolution or winding-up of
U. S. Bancorp as a whole, whether voluntary or involuntary, all Senior
Indebtedness (including any interest thereon accruing after the commencement
of any such proceedings) shall first be paid in full before any payment or
distribution shall be made on account of the principal of or interest on the
Subordinated Securities. In the event of any such proceeding, if any payment
by or distribution of assets of U. S. Bancorp of any kind or character,
whether in cash, property, or securities (other than (i) securities of
U. S. Bancorp or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is subordinate, at least
to the extent provided in the subordination provisions with respect to the
Subordinated Securities, to the payment of all Senior Indebtedness at the time
outstanding and to any securities issued in respect thereof under any such
plan of reorganization or readjustment or (ii) any cash, property, or
securities distributed pursuant to an order or decree of a court of competent
jurisdiction in a reorganization proceeding giving effect to the subordination
of the Subordinated Securities), including any such payment or distribution
which may be payable or deliverable by reason of the payment of any other
indebtedness of U. S. Bancorp being subordinated to the payment of the
Subordinated Securities, shall be received by the Trustee or the Holders of
the Subordinated Securities before all Senior Indebtedness is paid in full,
such payment or distribution shall be held (in trust if received by the
Holders of the Subordinated Securities) for the benefit of and shall be paid
over to the Holders of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Indebtedness may have been
issued, ratably, for application to the payment of all Senior Indebtedness
remaining unpaid until all such Senior Indebtedness shall have been paid in
full, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness. (Section 1301 of the Subordinated
Indenture). By reason of such subordination, in the event of the insolvency
of U. S. Bancorp, holders of Senior Indebtedness may receive more, ratably,
and holders of the Subordinated Securities having a claim pursuant to such
securities may receive less, ratably, than the other creditors of
U. S. Bancorp. Such subordination will not prevent the occurrence of any
Event of Default in respect of the Subordinated Securities.
In the event of any such proceeding, after payment in full of all
sums owing with respect to Senior Indebtedness, the Holders of Subordinated
Securities, together with the holders of any obligations of U. S. Bancorp
ranking on a parity with the Subordinated Securities, shall be entitled to be
repaid from the remaining assets of U. S. Bancorp the amounts at the time due
and owing on account of unpaid principal, premium, if any, and interest, if
any, on the Subordinated Securities and such other obligations before any
payment or other distribution, whether in cash, property or otherwise, may be
made on account of any capital stock or obligations of U. S. Bancorp ranking
junior to the Subordinated Securities and such other obligations.
In addition, in the event of the insolvency, bankruptcy,
receivership, conservatorship or reorganization of U. S. Bancorp, the claims
of the Holders of the Subordinated Securities would be subject as to
enforcement to the broad equity power of a federal bankruptcy court, and to
the determination by that court of the nature of the rights of the Holders.
Events of Default
Unless otherwise provided in the applicable Prospectus Supplement,
any series of Senior Securities issued under the Senior Indenture will provide
that the following shall constitute Events of Default with respect to such
series: (i) default in the payment of principal of or premium, if any, on any
Senior Security of such series when due; (ii) default in the payment of
interest, if any, on any Senior Security of such series when due, continued
for 30 days; (iii) default in the deposit of any sinking fund payment in
respect of any Senior Security of such series when due; (iv) default in the
performance, or breach, of any other covenant or warranty of U. S. Bancorp in
such Indenture (other than a covenant or warranty included in such Indenture
solely for the benefit of a series of the Senior Securities other than that
series), continued for 60 days after written notice as provided in such
Indenture; (v) acceleration of the Senior Securities of any other series or
any other indebtedness for borrowed money, in an aggregate principal amount
exceeding $15,000,000, of U. S. Bancorp as a result of a default under the
terms of the instrument or instruments under which such indebtedness is issued
or secured (but not necessarily a default in payment at maturity thereunder),
unless such acceleration is annulled or discharged, or a sum sufficient to
discharge such indebtedness has been deposited in trust, within 30 days after
written notice as provided in the Senior Indenture, provided that if such
default is remedied or cured by U. S. Bancorp or waived by the holders of such
indebtedness, the Event of Default by reason thereof shall be deemed to have
been thereupon remedied, cured or waived; and (vi) certain events in
bankruptcy, insolvency or reorganization of U. S. Bancorp or U. S. Bank of
Oregon. (Section 501 of the Senior Indenture).
Unless otherwise provided in the applicable Prospectus Supplement,
any series of Subordinated Securities issued under the Subordinated Indenture
will provide that the only Event of Default will be certain events in
bankruptcy, insolvency or reorganization of U. S. Bancorp. (Section 501 of
the Subordinated Indenture). Unless specifically stated in the applicable
Prospectus Supplement for a particular series of Subordinated Securities,
there is no right of acceleration of the payment of principal of the
Subordinated Securities upon a default in the payment of principal, premium,
if any, or interest, if any, or in the performance of any covenant or
agreement in the Subordinated Securities or Subordinated Indenture. In the
event of a default in the payment of principal, premium, if any, or interest,
if any, or in the performance of any covenant or agreement in the Subordinated
Securities or Subordinated Indenture, the Trustee, subject to certain
limitations and conditions, may institute judicial proceedings to enforce
payment of such principal, premium, if any, or interest, if any, or to obtain
the performance of such covenant or agreement or any other proper remedy.
(Section 503 of the Subordinated Indenture).
U. S. Bancorp is required to furnish to each Trustee annually an
Officers' Certificate concerning the absence of certain defaults under the
terms of the Indentures. (Section 1006). Each Indenture provides that if an
Event of Default specified therein shall occur and be continuing, either the
Trustee thereunder or the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities (as defined in the applicable Indenture) of a
series issued under that Indenture may declare the principal amount of all
such Debt Securities (or, in the case of original issue discount Debt
Securities, such portion of the principal amount thereof as may be specified
in the terms thereof) to be due and payable immediately; provided that under
the Senior Indenture, such acceleration of maturity shall be automatic with
respect to an Event of Default arising out of certain events in bankruptcy,
insolvency or reorganization of U. S. Bancorp. (Section 502).
Each Indenture contains a provision entitling the Trustee
thereunder, subject to the duty of such Trustee during default to act with the
required standard of care, to be indemnified by the Holders of the Debt
Securities of any series thereunder before proceeding to exercise any right or
power under such Indenture with respect to such series at the request of such
Holders. (Section 603). Each Indenture provides that no Holder of any Debt
Securities of any series thereunder may institute any proceeding, judicial or
otherwise, to enforce such Indenture except in the case of failure of the
Trustee thereunder, for 60 days, to act after it is given notice of default, a
request to enforce such Indenture by the Holders of not less than 25% in
aggregate principal amount of the Outstanding Debt Securities of such series
and an offer of reasonable indemnity. (Section 507). This provision will not
prevent any Holder of Debt Securities from enforcing payment of the principal
thereof and premium, if any, and interest, if any, thereon at the respective
due dates thereof. (Section 508). The Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of any series issued under
an Indenture may direct the time, method and place of conducting any
proceedings for any remedy available to the Trustee for such Debt Securities
or exercising any trust or power conferred on it with respect to the Debt
Securities of such series. However, such Trustee may refuse to follow any
direction that conflicts with law or the Indenture under which it serves or
which would be unjustly prejudicial to Holders not joining therein.
(Section 512).
Each Indenture provides that the Trustee thereunder will give to
the Holders of Debt Securities notice of a default if not cured or waived,
but, except in the case of a default in the payment of principal of or
premium, if any, or interest, if any, on any Debt Securities of such series or
in the payment of any sinking fund installment with respect to Debt Securities
of such series, the Trustee for such Debt Securities shall be protected in
withholding such notice if it determines in good faith that the withholding of
such notice is in the interest of the Holders of such Debt Securities.
(Section 602).
Modifications and Waiver
Modifications and amendments of either Indenture may be made by
U. S. Bancorp and the applicable Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Outstanding Debt Securities of
each series affected by such modification or amendment; provided, however,
that no such modification or amendment may, without the consent of the Holder
of each Outstanding Debt Security affected thereby, (i) change the Stated
Maturity of the principal of, or any premium or installment of interest, if
any, on any Debt Security, (ii) reduce the principal amount of, or premium or
interest, if any, on, any Debt Security, (iii) reduce the amount of principal
of an original issue discount Debt Security payable upon acceleration of the
maturity thereof, (iv) change the place or currency of payment of principal
of, or premium or interest, if any, on, any Debt Security, (v) impair the
right to institute suit for the enforcement of any such payment on or with
respect to any Debt Security, (vi) modify the subordination provisions of the
Subordinated Indenture in a manner adverse to the Holders of Subordinated
Securities, or (vii) reduce the percentage in principal amount of Outstanding
Debt Securities of any series, the consent of whose Holders is required for
modification or amendment of the Indenture or for waiver of compliance with
certain provisions of the Indenture or for waiver of certain defaults.
(Section 902).
The Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of each series may, on behalf of all Holders of
Debt Securities of that series, waive, insofar as that series is concerned,
compliance by U. S. Bancorp with certain restrictive provisions of the
Indenture under which such Outstanding Debt Securities were issued.
(Section 1008 of the Senior Indenture; Section 1007 of the Subordinated
Indenture). In certain cases, the Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of each series may, on
behalf of all Holders of Debt Securities of that series, waive any past
default under such Indenture with respect to Debt Securities of that series,
except a default in the payment of principal, or of premium or interest, if
any, or in respect of a provision which under such Indenture cannot be
modified or amended without the consent of the Holder of each Outstanding Debt
Security of that series. (Section 513).
Each Indenture provides that, in determining whether the Holders of
the requisite principal amount of the Outstanding Debt Securities have given
any request, demand, authorization, direction, notice, consent or waiver
thereunder, the principal amount of an original issue discount Debt Security
that shall be deemed to be Outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such determination
upon acceleration of the maturity thereof. (Section 101).
Consolidation, Merger, Conveyance, Transfer or Lease
U. S. Bancorp, without the consent of the Holders of any of the
Outstanding Debt Securities under either Indenture, may consolidate with or
merge into, or convey, transfer or lease its properties and assets
substantially as an entirety to, any corporation organized under the laws of
any domestic jurisdiction, provided that (i) the successor corporation assumes
U. S. Bancorp's obligations on the Debt Securities and under such Indenture,
(ii) after giving effect to the transaction no Default or Event of Default,
and no event which, after notice or lapse of time, would become a Default or
Event of Default, as applicable, shall have occurred and be continuing,
(iii) with respect to the Senior Indenture only, if as a result of the
transaction Voting Stock of U. S. Bank of Oregon would become subject to a
security interest which would not be permitted by the Senior Indenture, the
Senior Securities shall be secured equally with (or prior to) the indebtedness
secured thereby, and (iv) certain other conditions are met. (Section 801).
Governing Law
The Indentures and the Debt Securities will be governed by and
construed in accordance with the laws of the State of New York.
VALIDITY OF OFFERED DEBT SECURITIES
The validity of the Offered Debt Securities will be passed upon for
U. S. Bancorp by Miller, Nash, Wiener, Hager & Carlsen LLP, Portland, Oregon
("Miller Nash"), and for any underwriters or agents Brown & Wood LLP. John J.
DeMott, a partner in Miller Nash, is Secretary of U. S. Bancorp. Miller Nash
and certain attorneys associated with the firm may be indebted to and have
other banking and trust relationships with certain bank subsidiaries of
U. S. Bancorp.
EXPERTS
The consolidated financial statements of U. S. Bancorp and
subsidiaries, as of December 31, 1995 and 1994 and for each of the three years
in the period ended December 31, 1995, incorporated herein by reference from
U. S. Bancorp's 1995 Annual Report on Form 10-K, have been audited by
Deloitte & Touche LLP as stated in their report, which has been incorporated
herein by reference. The consolidated financial statements give retroactive
effect to the 1995 merger of U. S. Bancorp and subsidiaries and West One
Bancorp and subsidiaries, which has been accounted for as a
pooling-of-interests. The consolidated balance sheet of West One Bancorp and
subsidiaries as of December 31, 1994, and the related consolidated statements
of income, shareholders' equity, and cash flows for each of the two years in
the period ended December 31, 1994 (not presented separately in
U. S. Bancorp's 1995 Annual Report on Form 10-K) were audited by Coopers &
Lybrand L.L.P. as stated in its report, which has been incorporated herein by
reference from U. S. Bancorp's 1995 Annual Report on Form 10-K. Such
consolidated financial statements of U. S. Bancorp and subsidiaries have been
incorporated by reference herein in reliance upon the respective reports of
such firms given upon their authority as experts in accounting and auditing.
Both of the foregoing firms are independent accountants.
PLAN OF DISTRIBUTION
U. S. Bancorp may sell Debt Securities to one or more underwriters
for public offering and sale by them or may sell Debt Securities to investors
through agents, including its banking affiliates. Any such underwriter or
agent involved in the offer and sale of the Offered Debt Securities will be
named in the Prospectus Supplement.
Underwriters may offer and sell the Offered Debt Securities at a
fixed price or prices, which may be changed, or from time to time at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. In connection with the sale of the
Offered Debt Securities, underwriters may be deemed to have received
compensation from U. S. Bancorp in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of the Offered
Debt Securities for whom they may act as agent. Underwriters may sell the
Offered Debt Securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions from the purchasers for whom they may act as
agent. If so indicated in the Prospectus Supplement, U. S. Bancorp also may
offer and sell the Offered Debt Securities in exchange for one or more
outstanding issues of its, U. S. Bank of Oregon's or U. S. Bank of
Washington's debt securities.
Any underwriting compensation paid by U. S. Bancorp to underwriters
or agents in connection with the offering of the Offered Debt Securities, and
any discounts, concessions or commissions allowed by underwriters to
participating dealers, will be set forth in the Prospectus Supplement.
Underwriters, dealers and agents participating in the distribution of the
Offered Debt Securities may be deemed to be underwriters, and any discounts
and commissions received by them and any profit realized by them on resale of
the Offered Debt Securities may be deemed to be underwriting discounts and
commissions under the Securities Act of 1933. Underwriters, dealers and
agents may be entitled, under agreements entered into with U. S. Bancorp, to
indemnification against and contribution toward certain civil liabilities,
including liabilities under the Securities Act of 1933.
If so indicated in the Prospectus Supplement, U. S. Bancorp will
authorize dealers acting as U. S. Bancorp's agents to solicit offers by
certain institutions to purchase the Offered Debt Securities from
U. S. Bancorp at the public offering price set forth in the Prospectus
Supplement pursuant to delayed delivery contracts ("Contracts") providing for
payment and delivery on the date or dates stated in the Prospectus Supplement.
Each Contract will be for an amount not less than, and the aggregate principal
amount of the Offered Debt Securities sold pursuant to Contracts shall be not
less nor more than, the respective amounts stated in the Prospectus
Supplement. Institutions with whom Contracts, when authorized, may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions, and other
institutions, but will in all cases be subject to the approval of
U. S. Bancorp. Contracts will not be subject to any conditions except (i) the
purchase by an institution of the Offered Debt Securities covered by its
Contracts shall not at the time of delivery be prohibited under the laws of
any jurisdiction in the United States to which such institution is subject,
and (ii) if the Offered Debt Securities are being sold to underwriters,
U. S. Bancorp shall have sold to such underwriters the total principal amount
of the Offered Debt Securities less the principal amount thereof covered by
Contracts.
All Offered Debt Securities will be a new issue of securities with
no established trading market. Any underwriters to whom Offered Debt
Securities are sold by U. S. Bancorp for public offering and sale may make a
market in such Offered Debt Securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of the trading market
for any Offered Debt Securities.
Certain of the underwriters and their associates may be customers
of, engage in transactions with and perform services for U. S. Bancorp or its
subsidiaries in the ordinary course of business.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Securities and Exchange Commission filing fee. . . . . . . . . . $344,828
Accounting fees. . . . . . . . . . . . . . . . . . . . . . . . . 50,000*
Legal fees . . . . . . . . . . . . . . . . . . . . . . . . . . . 120,000*
Blue Sky qualification fees and expenses (including legal fees). 25,000*
Printing and engraving . . . . . . . . . . . . . . . . . . . . . 25,000*
Trustee fees and expenses under Indentures . . . . . . . . . . . 40,000*
Rating agency fees . . . . . . . . . . . . . . . . . . . . . . . 275,000*
Agents' expenses . . . . . . . . . . . . . . . . . . . . . . . . 10,000*
Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . 10,172*
--------
Total. . . . . . . . . . . . . . . . . . . . . . . . . . . $900,000*
=========
_____________
*Estimated.
Item 15. Indemnification of Directors and Officers.
ORS 60.367, a section of the Oregon Business Corporation Act ("Act"),
provides in substance that any director held liable for an unlawful
distribution in violation of ORS 60.367 is entitled to contribution from
(i) every other director who voted for or assented to the distribution without
complying with the applicable statutory standards of conduct and (ii) each
shareholder for the amount the shareholder accepted knowing the distribution
was made in violation of the Act or the corporation's articles of
incorporation.
Under Sections 60.387 to 60.414 of the Act, a person who is made a party
to a proceeding because such person is or was an officer or director of a
corporation (an "Indemnitee") shall be indemnified by the corporation (unless
the corporation's articles of incorporation provide otherwise) against
reasonable expenses incurred by the Indemnitee in connection with the
proceeding if the Indemnitee is wholly successful on the merits or otherwise
or if ordered by a court of competent jurisdiction. In addition, under said
sections a corporation is permitted to indemnify an Indemnitee against
liability incurred in a proceeding if (i) the Indemnitee's conduct was in good
faith and in a manner he or she reasonably believed was in the corporation's
best interests or at least not opposed to its best interests, (ii) the
Indemnitee had no reasonable cause to believe his or her conduct was unlawful
if the proceeding was a criminal proceeding, (iii) the Indemnitee was not
adjudged liable to the corporation if the proceeding was by or in the right of
the corporation (in which case indemnification is limited to the Indemnitee's
reasonable expenses in connection with the proceeding) and (iv) the Indemnitee
was not adjudged liable on the basis that he or she improperly received a
personal benefit.
Article VI of U. S. Bancorp's Articles of Incorporation contains the
following provision:
"A. The Corporation shall indemnify each of its directors and
officers to the fullest extent permissible under the Oregon Business
Corporation Act, as the same exists or may hereafter be amended, against
all expense, liability, and loss (including, without limitation,
attorneys' fees) incurred or suffered by such person by reason of or
arising from the fact that such person is or was a director or officer of
the Corporation, or is or was serving at the request of the Corporation
as a director, officer, partner, trustee, employee, or agent of another
foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan, or other enterprise, and such indemnification
shall continue as to a person who has ceased to be a director or officer
and shall inure to the benefit of his or her heirs, executors, and
administrators. The indemnification provided in this paragraph A shall
not be exclusive of any other rights to which any person may be entitled
under any statute, bylaw, agreement, resolution of shareholders or
directors, contract, or otherwise."
U. S. Bancorp has entered into an indemnification agreement with each of
its directors. Each such agreement provides that U. S. Bancorp will indemnify
the director (i) to the full extent authorized or permitted by the Act or any
other applicable statute or U. S. Bancorp's Articles of Incorporation or
Bylaws or any amendment thereof and (ii) against any obligation to pay a
judgment, settlement, penalty, fine or reasonable expenses, including attorney
fees (any of the foregoing, a "Liability") incurred in connection with any
claim (as defined), including a claim by or in the right of U. S. Bancorp;
provided that no indemnity shall be paid by U. S. Bancorp (A) if a final
decision by a court having jurisdiction shall determine that such
indemnification is unlawful, (B) on account of acts or omissions by the
director which are finally adjudged to have been not in good faith or to have
involved intentional misconduct or a knowing violation of law or (C) on
account of Liability under Section 16(b) of the Securities Exchange Act of
1934 or any similar provision of federal or state statutory law.
Each such agreement also provides that U. S. Bancorp will maintain in
effect, as long as the director continues to serve in such capacity and
thereafter so long as he or she is subject to any possible claim, directors'
and officers' liability insurance coverage at least comparable to the coverage
provided at the date the agreement was entered into unless such insurance is
not reasonably available or the premium cost is substantially disproportionate
to the amount or scope of coverage. In the event U. S. Bancorp does not
maintain such insurance coverage, U. S. Bancorp agrees to indemnify the
director to the full extent of the coverage in effect at the date the
agreement was entered into.
Reference is made to section 6 of the form of underwriting agreement
filed herewith as Exhibit 1 for provisions regarding the indemnification of
U. S. Bancorp, its directors, certain of its officers and its controlling
persons against certain civil liabilities, including civil liabilities under
the Securities Act of 1933.
U. S. Bancorp maintains directors' and officers' liability insurance
under which U. S. Bancorp's directors and officers are insured against loss
(as defined) as a result of claims made against them for their wrongful acts
in such capacities.
Item 16. Exhibits.
The exhibits to the Registration Statement required by Item 60l to
Regulation S-K are listed in the accompanying index to exhibits.
Item 17. Undertakings.
(a) Rule 415 Offering.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933 unless the information required to be
included in such post-effective amendment is contained in a
periodic report filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") and incorporated herein by reference;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in the registration statement, unless the
information required to be included in such post-effective
amendment is contained in a periodic report filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act and
incorporated herein by reference; provided that, notwithstanding
the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement.
(2) That, for purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) Filing Incorporating Subsequent Exchange Act Documents by Reference.
The undersigned registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(h) Acceleration of Effectiveness.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described in Item 15 above, or
otherwise, the registrant has been advised that, in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue. The undertaking of the
registrant in the preceding sentence does not apply to insurance against
liability arising under the Securities Act of 1933.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Portland, State of Oregon, on the
25th day of September, 1996.
U. S. BANCORP
By /s/ Gerry B. Cameron
Gerry B. Cameron
Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated on the 25th day of September, 1996.
Signature Title
--------- -----
(1) Principal Executive Officer
and Director:
/s/ Gerry B. Cameron Chairman of the Board and Chief
Gerry B. Cameron Executive Officer and Director
(2) Principal Financial and
Accounting Officer:
/s/ Steven P. Erwin Executive Vice President and
Steven P. Erwin Chief Financial Officer
(3) A Majority of the Board of Directors:
HARRY BETTIS* Director
CAROLYN SILVA CHAMBERS* Director
FRANKLIN G. DRAKE* Director
ROBERT L. DRYDEN* Director
JOHN B. FERY* Director
JOSHUA GREEN III* Director
DANIEL R. NELSON* Director
ALLEN T. NOBLE* Director
PAUL A. REDMOND* Director
N. STEWART ROGERS* Director
BENJAMIN R. WHITELEY* Director
*By /s/ Dwight V. Board
Dwight V. Board
Attorney-in-fact
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Document Description
- ------ -------------------
1 Form of proposed Underwriting Agreement.
4.1 Form of Indenture relating to Senior Securities between the
registrant and The First National Bank of Chicago, as Trustee.
4.2 Form of Indenture relating to Subordinated Securities between the
registrant and The First National Bank of Chicago, as Trustee.
4.3 Form of Senior Security.
4.4 Form of Subordinated Security.
5 Opinion of Miller, Nash, Wiener, Hager & Carlsen LLP as to the
validity of the Debt Securities.
12 U. S. Bancorp and Subsidiaries Computation of Ratios of Earnings to
Fixed Charges. Incorporated by reference to Exhibit 12 to the
registrant's quarterly report on Form 10-Q/A (Amendment No. 1) for
the quarter ended June 30, 1996.
23.1 Consent of Deloitte & Touche LLP, independent auditors, with
respect to financial statements of the registrant.
23.2 Consent of Coopers & Lybrand L.L.P., independent auditors, with
respect to financial statements of West One Bancorp.
23.3 Consent of Miller, Nash, Wiener, Hager & Carlsen LLP (included in
Exhibit 5).
24 Power of attorney of certain officers and directors of the
registrant.
25 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The First National Bank of Chicago.
_____________
Other exhibits listed in Item 601 of Regulation S-K are not applicable.
<PAGE>
<PAGE>
Exhibit 1
U. S. Bancorp
Underwriting Agreement
To: The Representatives [Date]
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
U. S. Bancorp, an Oregon corporation (the "Company"), proposes to
issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its securities identified in
Schedule I hereto (the "Securities"), to be issued under an indenture dated as
of _____________, 1996 (the "Indenture"), between the Company and The First
National Bank of Chicago, as trustee (the "Trustee"). If the firm or firms
listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives," as
used herein shall each be deemed to refer to such firm or firms.
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act") and the rules and
regulations of the Securities and Exchange Commission (the
"Commission") under the Act and has filed with the Commission a
registration statement on such Form (File No. 333-_____________),
which has become effective for the registration under the Act of
$1,000,000,000 aggregate principal amount of debt securities
(including the Securities). Such registration statement, as it may
be amended or supplemented, meets the requirements set forth in
Rule 415(a) under the Act and complies in all other material
respects with said Rule. In connection with the sale of Securities,
the Company proposes to file with the Commission pursuant to
Rule 424 under the Act a supplement to the form of prospectus
included in the registration statement relating to the Securities
and the plan of distribution thereof and has previously advised the
Underwriters of all further information (financial and other) with
respect to the Company to be set forth therein. Such registration
statement, including the exhibits thereto, as amended to the date of
this Agreement, is hereinafter called the "Registration Statement"
and such prospectus, as supplemented pursuant to the previous
sentence, is hereinafter called the "Prospectus." Any reference
herein to the Registration Statement or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 that were filed
under the Securities Exchange Act of 1934 (the "Exchange Act") on or
before the date of this Agreement.
(b) On the effective date of the Registration Statement, the
Registration Statement, as amended on such date, conformed in all
material respects to the requirements of the Act, the Exchange Act,
and the Trust Indenture Act of 1939 (the "Trust Indenture Act") and
the respective rules and regulations of the Commission thereunder
(the "Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; on the date of this Agreement, the
Registration Statement, as amended on the date hereof, conformed in
all material respects to the requirements of the Act, the Exchange
Act, the Trust Indenture Act, and the Rules and Regulations and did
not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading; and on the date any
supplement reflecting the terms of the Securities and the terms of
offering thereof is filed pursuant to Rule 424(b) under the Act and
at the Closing Date (as hereinafter defined), the Registration
Statement, as amended on such date, and the Prospectus will conform
in all material respects to the requirements of the Act, the
Exchange Act, the Trust Indenture Act, and the Rules and Regulations
and neither of such documents will include any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading; except that the foregoing does not apply to (i)
statements in or omissions from any such documents based upon
written information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for use therein
or (ii) that part of the Registration Statement that shall
constitute the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of the Trustee.
2. Purchase and Offering.
(a) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the
purchase price set forth in Schedule I the principal amount of the
Securities set forth opposite such Underwriter's name in Schedule II
except that, if Schedule I provides for the sale of Securities
pursuant to delayed delivery arrangements, the respective principal
amounts of Securities to be purchased by the Underwriters shall be
as set forth in Schedule II hereto, less the respective amounts of
Contract Securities (as hereinafter defined) determined as provided
below. Securities to be purchased by the Underwriters are herein
sometimes called the "Underwriters' Securities" and Securities to be
purchased pursuant to delayed delivery contracts are herein
sometimes called "Contract Securities." It is understood that the
Underwriters propose to offer the Securities for sale as will be set
forth in the Prospectus.
(b) If Schedule I provides for sales of the Securities
pursuant to delayed delivery contracts, the Company authorizes the
Underwriters to solicit offers to purchase Contract Securities
pursuant to delayed delivery contracts substantially in the form of
Schedule III ("Delayed Delivery Contracts") with such changes
therein as the Company may approve. Delayed Delivery Contracts are
to be with institutional investors, including commercial and savings
banks, insurance companies, pension funds, investment companies, and
education and charitable institutions. On the Closing Date the
Company will pay the Representatives, for the account of the
Underwriters, as compensation, the fee set forth in Schedule I in
respect of the principal amount of Contract Securities. The
entering into of Delayed Delivery Contracts arranged by the
Underwriters shall in each case be subject to the Company's approval
and acceptance. Except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for the minimum principal
amount set forth in Schedule I, and the aggregate principal amount
of Contract Securities may not exceed the maximum amount set forth
in Schedule I. The Underwriters will not have any responsibility in
respect of the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities shall be deducted from the
Securities to be purchased by the several Underwriters and the
aggregate principal amount of the Securities to be purchased by the
several Underwriters and the aggregate principal amount of the
Securities to purchased by each Underwriter shall be reduced
pro rata in proportion to the principal amount of the Securities set
forth opposite such Underwriter's name in Schedule II, except to the
extent that the Underwriters determine that such reduction shall be
otherwise and so advise the Company in writing; provided, however,
that the total principal amount of the Securities to be purchased by
all Underwriters shall be the principal amount of the Securities set
forth in Schedule II less the aggregate principal amount of Contract
Securities; and provided further that the Securities shall be issued
in authorized denominations only.
3. Delivery and Payment. Delivery of any payment for the
Underwriters' Securities shall be made at the office on the date and at the
time specified in Schedule I, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in
Section 7 hereof (such date and time of delivery and payment for Securities
being herein called the "Closing Date"). Delivery of the Underwriters'
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price to or upon the order of the Company
in the funds specified in Schedule I. Certificates for the Underwriters'
Securities shall be registered in such names and in such authorized
denominations as the Representatives may request not less than two full
business days prior to the Closing Date.
The Company will have the Underwriters' Securities available for
inspection, checking, and packaging by the Representatives in the city in
which delivery and payment is to occur, not later than 1 p.m., on the business
day prior to the Closing Date.
4. Covenants of the Company. In connection with the offering of
the Securities, the Company covenants and agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the
Registration Statement or supplement to the Prospectus (including
the supplement to reflect the terms of the Securities and the terms
of offering thereof) unless the Company has furnished the
Representatives a copy for review prior to filing and will not file
any such proposed amendment or supplement to which the
Representatives reasonably object. Subject to the foregoing
sentence, the Company will cause the supplement reflecting the terms
of the Securities and the terms of offering thereof to be filed (or
transmitted for filing) with the Commission pursuant to Rule 424(b).
The Company will promptly advise the Representatives of the
institution by the Commission of any stop order proceedings in
respect of the Registration Statement, and will use its best efforts
to prevent the issuance of any such stop order and to obtain as soon
as possible its lifting, if issued.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend or
supplement the Registration Statement or the Prospectus to comply
with the Act or the Rules and Regulations, the Company promptly will
prepare and file with the Commission an amendment or supplement
which will correct such statement or omission, or an amendment or
supplement which will effect such compliance.
(c) The Company will furnish (to the extent it has not
already done so) to Brown & Wood LLP, counsel for the Underwriters,
one signed copy of the Registration Statement, including all
exhibits, relating to the Securities in the form it became effective
and of all amendments thereto and will furnish to each Underwriter
copies of the Registration Statement, including all exhibits, the
Prospectus (including any amendments or supplements thereto), any
related preliminary prospectus, and, so long as delivery of a
prospectus by an Underwriter or dealer may be required under the
Act, all amendments and supplements to such documents, in each case
as soon as available and in such quantities as may be reasonably
requested.
(d) The Company will use its best efforts to arrange for
such qualifications in such domestic jurisdictions as the
Representatives may reasonably designate and will continue such
qualifications in effect so long as required for the distribution of
the Securities, and will use its best efforts to arrange for the
determination of their eligibility for investment by institutional
investors; provided, however, that the Company shall not be required
to qualify to do business in any jurisdiction where it is not now
qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now
subject.
(e) As soon as practicable after the Closing Date, but in
any event not later than the Applicable Release Date (as defined
below), the Company will make generally available to its security
holders an earning statement or statements covering a period of at
least 12 months beginning after the Closing Date that will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the
Act. For the purpose of the preceding sentence, "Applicable Release
Date" means (i) the 45th day after the end of the fourth fiscal
quarter following the fiscal quarter that includes the Closing Date
or (ii) if such fourth fiscal quarter is the last quarter of the
Company's fiscal year, the 90th day after the end of such fourth
fiscal quarter.
(f) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, will reimburse
the Underwriters for any expenses (including reasonable fees and
disbursements of counsel) incurred by them in connection with
qualification of the Securities for sale and determination of their
eligibility for investment under the laws of such jurisdictions as
the Representatives designate and the printing of memoranda relating
thereto, and will pay the expenses of printing all documents
relating to the offering (other than any agreement among
underwriters) and of the mailing and delivering of copies thereof to
the Underwriters and the fees of any rating agency that rates the
Securities.
(g) The Company will not, without prior consent of the
Representatives, offer or sell any of its debt securities having a
maturity of more than one year (except for the Securities) between
the date of this Agreement and the Closing Date.
5. Conditions. The obligations of the several Underwriters to
purchase and pay for any Securities hereunder will be subject to the accuracy
of the representations and warranties on the part of the Company herein as of
the date hereof and the Closing Date, to the accuracy of the statements of
Company officers made pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) Subsequent to the execution of this Agreement, there
shall not have occurred (i) any change, or any development involving
a prospective change, in or affecting particularly the business or
properties of the Company and its subsidiaries viewed as a whole
which, in the judgment of the Representatives, after discussion with
the Company, materially impairs the investment quality of the
Securities so as to make it impractical or inadvisable to proceed
with completion of the sale of and payment for the Securities;
(ii) any downgrading in the rating of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any public
announcement by any such organization that it has under surveillance
or review, with possible negative implications, its rating of any of
the Company's debt securities; (iii) any suspension or limitation of
trading in securities generally, or in the securities of the
Company, on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange; (iv) any banking moratorium
declared by Federal, Oregon, or New York authorities; or (v) the
engagement by the United States in hostilities which have resulted
in the declaration, on or after the date hereof, of a national
emergency or war if, in the judgment of the Representatives, the
effect of any such event make it impractical or inadvisable to
proceed with the completion of the sale of and payment for the
Securities.
(b) No stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted and
be pending or, to the knowledge of the Company or any Underwriter,
shall be contemplated by the Commission as of the Closing Date.
(c) The Representatives shall have received the following:
(i) Deloitte & Touche LLP shall have furnished
to the Representatives a letter or letters (which may
refer to one or more letters previously delivered to one
or more of the Representatives), dated as of the Closing
Date, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and
the Rules and Regulations and stating in effect that:
(A) in their opinion the audited
financial statements and any supplemental
schedules included or incorporated in the
Registration Statement and the Prospectus
and reported on by them comply as to form in
all material respects with the applicable
accounting requirements of the Act and the
Rules and Regulations with respect to
financial statements and supplemental
schedules;
(B) on the basis of a reading of the
latest unaudited financial statements made
available by the Company and its
subsidiaries, the carrying out of certain
specified procedures (but not an examination
in accordance with generally accepted
auditing standards) which would not
necessarily reveal matters of significance
with respect to the items set forth in such
letter, a reading of the minutes of the
meetings of the shareholders, board of
directors and executive and audit committees
of such board of the Company, and inquiries
of certain officials of the Company who have
responsibility for financial and accounting
matters of the Company and its subsidiaries
as to transactions and events subsequent to
the date of the most recent audited
financial statements incorporated in the
Registration Statement and the Prospectus,
nothing came to their attention which caused
them to believe:
(1) any unaudited financial
statements included or incorporated by
reference in the Registration
Statement and the Prospectus do not
comply as to form in all material
respects with the applicable
accounting requirements of the
Exchange Act and the Rules and
Regulations as they apply to Form 10-Q
or are not fairly presented in
conformity with generally accepted
accounting principles applied on a
basis substantially consistent with
that of the audited financial
statements incorporated in the
Registration Statement and the
Prospectus; or
(2) the amounts in the
"Selected Consolidated Financial Data"
included in the Registration Statement
and the Prospectus do not agree with
corresponding amounts in the financial
statements from which such amounts
were derived or were not determined on
a basis substantially consistent with
that of the corresponding amounts in
the audited financial statements
incorporated in the Registration
Statement and the Prospectus or do not
agree with the accounting records of
the Company and its subsidiaries; or
(3) with respect to the period
subsequent to the date of the most
recent financial statements
incorporated in the Registration
Statement and the Prospectus and
through a specified date not more than
five business days prior to the date
of the letter, there was any change in
the common stock of the Company (other
than as a result of the exercise of
options granted under the Company's
employee stock option plans and sales
under the Company's dividend
reinvestment and stock purchase plan),
any increase in the Company's
consolidated long-term debt or any
decrease in the Company's consolidated
shareholders' equity (other than as a
result of normal quarterly cash
dividends), consolidated total assets,
consolidated allowance for loan
losses, or consolidated deposits, in
each case as of the month-end on or
next preceding such specified date, in
each case as compared with the
corresponding amounts shown on the
most recent consolidated balance sheet
incorporated in the Registration
Statement and the Prospectus, or for
the period from the date of the most
recent financial statements
incorporated in the Registration
Statement and the Prospectus to the
date of the latest available monthly
consolidated income statement there
were any decreases, as compared with
the corresponding period in the
preceding year, in consolidated net
interest income, consolidated net
interest income after provision for
loan losses, consolidated noninterest
revenue, or consolidated net income of
the Company and its consolidated
subsidiaries, except in all instances
for changes, increases or decreases
set forth in such letter, in which
case the letter shall be accompanied
by an explanation by the Company as to
the significance thereof unless said
explanation is not deemed necessary by
the Representatives; and
(C) they have compared specified
dollar amounts (or percentages derived from
such dollar amounts) and other financial
information included or incorporated in the
Registration Statement and Prospectus (in
each case to the extent that such dollar
amounts, percentages and other financial
information are derived from the general
accounting records of the Company and its
subsidiaries subject to the internal
controls of the Company's accounting system
or are derived directly from such records by
analysis or computation) with the results
obtained from a reading of applicable
general accounting records and other
procedures specified in such letter and have
found such dollar amounts, percentages, and
other financial information to be in
agreement with such results, except as
otherwise specified in such letter.
In addition, immediately prior to the execution of this Agreement,
Deloitte & Touche LLP shall have furnished to the Representatives a
letter or letters (which may refer to one or more letters previously
delivered to the Representatives), dated the date of this Agreement,
in form and substance satisfactory to the Representatives, to the
effect set forth in the introductory paragraph to this
paragraph (i), and, to the extent referred to in the information
included or incorporated in the Registration Statement and the
Prospectus as amended or supplemented to the date of such letter, to
the effect set forth in clauses (A), (B), and (C) of this paragraph.
(ii) The Representatives shall have received an opinion or
opinions, dated the Closing Date, of Miller, Nash, Wiener, Hager &
Carlsen LLP, counsel for the Company, to the effect that:
(A) the Company has been duly incorporated and
is validly existing as a corporation in good standing
under the laws of the state of Oregon, with corporate
power and authority to own its properties and conduct
its business as described in the Prospectus, and the
Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956;
(B) The Registration Statement has become
effective under the Act; and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings for that
purpose have been instituted and are pending or
contemplated by the Commission under the Act and the
Registration Statement and the Prospectus and any
amendment or supplement thereto (as of its date)
complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act, and
the Rules and Regulations; the descriptions in the
Registration Statement and the Prospectus of the
Securities, of the Indenture, and of statutes, legal and
governmental proceedings and contracts are accurate and
fairly represent the information required to be shown;
and to the knowledge of such counsel there are no legal
or governmental proceedings required to be described in
the Prospectus which are not described as required, nor
are there any contracts or documents of a character
required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed
as required; it being understood that such counsel need
express no opinion as to the financial statements or
other financial or statistical data contained in the
Registration Statement, the Prospectus, or any amendment
or supplement thereto;
(C) The Indenture has been duly authorized,
executed,and delivered by the Company, has been duly
qualified under the Trust Indenture Act and constitutes
a legal, valid, and binding instrument enforceable
against the Company in accordance with its terms
(subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, and other laws of general
applicability relating to or affecting creditors' rights
and to general equitable principles); the Securities
have been duly authorized; the Underwriters' Securities
have been duly executed, authenticated, issued, and
delivered in accordance with the provisions of the
Indenture and constitute legal, valid, and binding
obligations of the Company entitled to the benefits
provided by the Indenture; and the Contract Securities,
when they have been executed and authenticated in
accordance with the provisions of the Indenture and
delivered to and paid for by the purchasers thereof
pursuant to Delayed Delivery Contracts, will constitute
legal, valid, and binding obligations of the Company
entitled to the benefits provided by the Indenture;
(D) Neither the execution and delivery of the
Indenture, this Agreement, any Delayed Delivery
Contracts or the Securities, nor consummation of the
transactions herein or therein contemplated or
compliance with the terms and provisions hereof or
thereof will conflict with or result in a breach of any
of the terms, conditions or provisions of the articles
of incorporation or bylaws of the Company or of any
agreement or instrument known to such counsel to which
the Company is a party or by which the Company is bound
or to which the property of the Company is subject, or
constitute a default thereunder, or result in the
creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the
properties or assets of the Company under any such
agreement or instrument, or result in a violation of any
federal or Oregon statute, rule or regulation, or, to
the knowledge of such counsel, any other statute, rule
or regulation or any order of any court or regulatory
authority or other governmental agency or body having
jurisdiction over the Company or any of its properties,
and the Company has full corporate power and authority
to authorize, issue and sell the Securities as
contemplated by this Agreement;
(E) No consent, approval, authorization or other
order of or filing with any regulatory authority or
other governmental agency or body is required for the
execution and delivery by the Company of the Indenture,
this Agreement, or the Delayed Delivery Contracts, the
issuance and sale of the Securities by the Company
pursuant to this Agreement and any Delayed Delivery
Contracts or consummation by the Company of the
transactions contemplated by the Indenture, the
Securities, this Agreement and any Delayed Delivery
Contracts, except such as have been obtained and made
under the Act and the Trust Indenture Act, it being
understood that such counsel need not express any
opinion as to securities laws of the states and other
jurisdictions of the United States; and
(F) This Agreement and any Delayed Delivery
Contracts have been duly authorized by all necessary
corporate action on the part of the Company and have
been duly executed and delivered by the Company.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives
of the Company, representatives of the independent public
accountants for the Company, the Representatives, and counsel for
the Representatives, at which the contents of the Registration
Statement and Prospectus and related matters were discussed and,
although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and Prospectus
(except for those made under the captions "Description of Debt
Securities" in the Registration Statement and "Description of Notes"
and "Plan of Distribution of Notes" in any prospectus supplement,
insofar as they relate to the provisions of documents therein
described, and except for those, if any, made under the caption
"Federal Income Taxation") and on the basis of the foregoing
(relying as to materiality to a large extent upon the opinions of
officers and other representatives of the Company), no facts have
come to the attention of such counsel in the course of their
representation of the Company that have led them to believe that
either the Registration Statement or any amendment thereto at the
time such Registration Statement or amendment became effective and
at the date of this Agreement contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of the date of this Agreement,
contained an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no
opinion or belief with respect to the financial statements,
financial schedules and other financial and statistical data
included in the Registration Statement, Prospectus or any amendment
or supplement thereto).
In rendering their opinion pursuant to this paragraph, such counsel
may rely, as to any matters governed by New York law, on the opinion of
Brown & Wood LLP referred to below.
(iii) The Representatives shall have received an opinion or
opinions, dated the Closing Date, of Dwight V. Board, Executive Vice
President of the Company, to the effect that:
(A) Each of United States National Bank of Oregon
("USBO") and U. S. Bank of Washington, National Association
("USBW"), or its successor, has been duly organized and is
validly existing as a national banking association in good
standing under the laws of the United States with corporate
power and authority to own its properties and conduct its
business as described in the Prospectus; and
(B) All of the outstanding shares of capital stock of
each of USBO and USBW, or its successor, have been duly
authorized and validly issued, are fully paid and
nonassessable (except as provided in 12 USC Section 55) and
are owned beneficially by the Company (except for directors'
qualifying shares) subject to no mortgage, pledge, lien,
encumbrance, charge or adverse claim.
(C) To the best knowledge of such officer, no
default exists, and no event has occurred which with
notice or after the lapse of time to cure, or both,
would constitute a default, in the due performance and
observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, loan agreement,
lease, license, permit, certificate or other agreement
or instrument known to such officer to which the Company
or any of its subsidiaries is a party, or to which any
of them or their respective properties is subject, the
charter or by-laws of the Company or any of its
subsidiaries, any statute, or any judgment, decree,
order or rule or regulation known to such officer of any
court or governmental agency or body applicable to the
Company or any of its subsidiaries or any of their
respective properties, where such default could have a
material adverse effect on the Company and its
subsidiaries considered as a whole.
(iv) The Representatives shall have received from Brown &
Wood LLP, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Statement, the
Prospectus and other related matters as they may reasonably require,
and the Company shall have furnished to such counsel such documents
as they may request for the purpose of enabling them to pass upon
such matters. In rendering such opinion, Brown & Wood LLP may rely,
as to all matters governed by Oregon law, upon the opinion of
Miller, Nash, Wiener, Hager & Carlsen LLP referred to above.
(v) The Representatives shall have received a certificate of
the Chairman of the Board, a Vice Chairman of the Board, the
President or any Executive Vice President and a principal financial
or accounting officer, or the Controller of the Company, dated the
Closing Date, in which such officers, to the best of their knowledge
after reasonable investigation, shall state that the representations
and warranties of the Company in this Agreement are true and correct
in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date, that the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Date, that no stop
order suspending the effectiveness of the Registration Statement or
any part thereof has been issued and no proceedings for that purpose
have been instituted and are pending or contemplated by the
Commission as of such date, and that, subsequent to the date of the
most recent financial statements included or incorporated in the
Prospectus, there has been no material adverse change in the
condition (financial or other), earnings, businesses or properties
of the Company and its subsidiaries (viewed as a whole), whether or
not arising from transactions in the ordinary course of business,
except as set forth or contemplated in the Prospectus or as
described in such certificate.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls such Underwriter within the
meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which
such Underwriter or any of them may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary
prospectus or prospectus supplement, or arise out of or are based
upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading; and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that (i) the Company will not be liable
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
such document in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for use in
connection with the preparation thereof, and (ii) such indemnity
with respect to any preliminary prospectus or any Prospectus as
supplemented or amended shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom
the person asserting any such loss, claim, damage or liability
purchased the Securities if it shall be established that such person
did not receive a copy of the Prospectus (or the Prospectus as
amended or supplemented), excluding documents incorporated therein
by reference, at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is
required by the Act and the untrue statement or omission or the
alleged untrue statement or omission was corrected in the Prospectus
(or the Prospectus as amended or supplemented).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company and each of its directors, each of its officers
who signs the Registration Statement, and each person who controls
the Company within the meaning of either the Act or the Exchange
Act, against any losses, claims, damages or liabilities, joint or
several, to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary
prospectus or prospectus supplement, or arise out of or are based
upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Company
by or on behalf of such Underwriter through the Representatives
specifically for use in connection with the preparation thereof; and
will reimburse any legal or other expenses reasonably incurred by
any such indemnified party in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under
this Section 6 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a) or (b) of this
Section 6, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying
party will not relieve the indemnifying party from any liability
which it may have to any indemnified party otherwise than under
subsection (a) or (b) of this Section 6. In case any such action is
brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and, to the extent
that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party (who shall not,
without the consent of the indemnified party, be counsel to the
indemnifying party). After notice from the indemnifying party to
such indemnified party of its election so to assume the defense of
such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party
under this Section 6 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof unless the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of
commencement of the action. Anything in this Section 6(c) to the
contrary notwithstanding, the indemnifying party shall not be liable
for any settlement of any such loss, claim, damage, liability or
action effected without its written consent.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b) above in such proportion as is
appropriate to reflect the relative benefits received by the Company
on the one hand and the Underwriters on the other from the offering
of the Securities and the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company
or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations
and not joint.
(e) The obligations of the Company under this Section shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of
the Act; and the obligations of the Underwriters under this
Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each
officer of the Company who has signed the Registration Statement and
to each person, if any, who controls the Company within the meaning
of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase the Securities under this Agreement
and the aggregate principal amount of the Securities which such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10%
of the total principal amount of the Securities, the Representatives may make
arrangements satisfactory to the Company for the purchase of such Securities
by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date the nondefaulting Underwriters shall
be obligated severally, in proportion to their respective commitments under
this Agreement, to purchase the Securities which such defaulting Underwriters
agreed but failed to purchase. If any Underwriter or Underwriters so default
and the aggregate principal amount of the Securities with respect to which
such default or defaults occur is more than 10% of the total principal amount
of the Securities and arrangements satisfactory to the Representatives and the
Company are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any nondefaulting Underwriter or
the Company, except as provided in Section 8. In the event of default by any
Underwriter or Underwriters as set forth in this Section 7, the Closing Date
may be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and Prospectus or in other documents may be effected.
As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default. The
respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the principal amounts of the Securities
set forth opposite their names in Schedule II as a result of Delayed Delivery
Contracts entered into by the Company.
8. Survival of Representations, Warranties, Etc. The respective
representations, warranties, agreements, indemnities and other statements of
the Company or its officers and the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on
behalf of the Underwriters or the Company or any of its officers, directors or
any controlling person, and will survive delivery of and payment for the
Securities. If this Agreement is terminated pursuant to Section 7 or if for
any reason the purchase of the Securities by the Underwriters under this
Agreement is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 4(f) and the
respective obligations of the Company and the Underwriters pursuant to
Section 6 shall remain in effect. If the purchase of the Securities by the
Underwriters is not consummated for any reason other than solely because of
the termination of this Agreement pursuant to Section 7 or the occurrence of
any event specified in clause (i), (iii), (iv) or (v) of Section 5(a), the
Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Securities.
9. Notices. All communications hereunder will be in writing and,
if sent to the Representatives or the Underwriters, will be mailed, delivered
or telegraphed and confirmed to the Representatives, at each address specified
in Schedule I hereto; provided, however, that any notice to an Underwriter
pursuant to Section 6 hereof shall be mailed, delivered or telegraphed and
confirmed to such Underwriter at its address set forth in its Underwriter's
Questionnaire, or telex constituting such questionnaire, which address will be
supplied to the Company by the Representatives upon request; or, if sent to
the Company, will be mailed, delivered or telegraphed and confirmed to it at
111 S.W. Fifth Avenue, Portland, Oregon 97204, Attention: Treasurer.
10. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and, to the
extent provided in Section 6 hereof, for the benefit of the officers and
directors and controlling persons referred to in Section 6 hereof, and no
other person will have any right or obligation hereunder. The term
"successor" shall not include any purchaser as such purchaser of any of the
Securities from any Underwriter.
11. Representation of Underwriters. The Representatives will
act for the several Underwriters in connection with the transactions
contemplated hereby, and any action under this Agreement taken by them will be
binding upon all the Underwriters.
12. Other. Additional terms and conditions, if any, relating to
the transactions contemplated hereby may be set forth in Schedule I.
13. Miscellaneous. This Agreement may be executed in one or more
counterparts and it is not necessary that signatures of all parties appear on
the same counterpart, but such counterparts together shall constitute but one
and the same agreement. This Agreement shall be governed by and construed in
accordance with the laws of the state of New York. Time shall be of the
essence of this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
U. S. BANCORP
By
---------------------------------------
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
- ------------------------------------------
By:
---------------------------------------
- ------------------------------------------
By:
---------------------------------------
For themselves and the other several Underwriters, if any, named in
Schedule II to the foregoing Agreement.
<PAGE>
Schedule I
----------
Underwriting Agreement dated
Names and addresses of Representative(s):
Title, description and purchase price of Securities:
Title:
Principal amount:
Redemption provisions:
Stated Maturity:
Interest:
Rate if fixed rate:
Terms if floating rate:
Sinking fund provisions:
Other provisions:
Purchase price (specify accrued
interest or amortization, if
applicable):
Closing Date, time and location:
Funds for payment of purchase price:
Delayed delivery arrangements:
Fee:
Minimum principal amount of each contract: $
Maximum aggregate principal amount of all contracts: $
Additional terms and conditions including initial public offering price and
dealers' discounts and concessions:
<PAGE>
Schedule II
Underwriter Principal amount
- ----------- of Securities to
be purchased
---------------
Total __________________________
==========================
<PAGE>
Schedule III
Delayed Delivery Contract
(Insert date of
initial public
offering]
U. S. Bancorp
111 S.W. Fifth Avenue
Portland, Oregon 97204
Dear Sirs:
The undersigned hereby agrees to purchase from U. S. Bancorp, an
Oregon corporation (the "Company"), and the Company agrees to sell to the
undersigned, as of the date hereof, for delivery on _____________, 19____,
(the "Delivery Date"), $_____________ in principal amount of the Company's
_____________ (the "Securities") offered by the Company's prospectus dated
_____________, 19____, as supplemented by a prospectus supplement dated
_____________, 19____ (the "Prospectus"), receipt of a copy of which is hereby
acknowledged, at a purchase price of __ percent of the principal amount
thereof, plus accrued [interest or amortization of original issue discount],
if any, thereon from _____________, 19____, date of payment and delivery, and
on the further terms and conditions set forth in this Contract.
Payment for the Securities to be purchased by the undersigned shall
be made on or before __________________________ on the Delivery Date to or
upon the order of the Company in _____________ funds, at
__________________________ or at such other place as shall be agreed between
the Company and the undersigned upon delivery to the undersigned of the
Securities in definitive form and in such authorized denominations and
registered in such names as the undersigned may request by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date. If no request is so received, the
Securities will be registered in the name of the undersigned and issued in a
denomination equal to the aggregate principal amount of the Securities to be
purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date, and the obligation of the Company
to sell and deliver Securities on the Delivery Date, shall be subject to the
conditions (and neither party shall incur any liability by reason of the
failure thereof) that (1) the purchase of the Securities to be made by the
undersigned, which purchase the undersigned represents is not prohibited on
the date hereof, shall not on the Delivery Date be prohibited under the laws
of any jurisdiction in the United States to which the undersigned is subject,
and (2) the Company, on or before the Delivery Date, shall have sold to
certain underwriters (the "Underwriters") such principal amount of the
Securities as is to be sold to them pursuant to the Underwriting Agreement
referred to in the Prospectus mentioned above, less any Securities sold
pursuant to this and other similar delayed delivery contracts. Promptly after
completion of such sale to the Underwriters, the Company will mail or deliver
to the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the opinion of counsel for the Company delivered to
the Underwriters in connection therewith. The obligation of the undersigned
to take delivery of and make payment for the Securities, and the obligation of
the Company to cause the Securities to be sold and delivered, shall not be
affected by the failure of any purchaser to take delivery of and make payment
for the Securities pursuant to other delayed delivery contracts similar to
this Contract.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this Contract and other similar
delayed delivery contracts is in the Company's sole discretion and, without
limiting the foregoing, need not be on a first come, first served basis. If
this Contract is acceptable to the Company, it is requested that the Company
sign the form of acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This will become a
binding contract between the Company and the undersigned, as of the date first
above written, when such counterpart is so mailed or delivered.
Very truly yours,
------------------------------------------
By
---------------------------------------
(Signature and Title of Officer)
------------------------------------------
(Address of Purchaser)
------------------------------------------
(Taxpayer Identification Number)
Accepted as of the date first above written:
U. S. Bancorp
By
---------------------------------------
(Authorized Signature)
<PAGE>
Exhibit 4.1
U. S. BANCORP
AND
FIRST NATIONAL BANK OF CHICAGO
Trustee
---------
INDENTURE
Dated as of _____________, 1996
Senior Debt Instruments
<PAGE>
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS
310 THROUGH 318, INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE ACT SECTION INDENTURE SECTION
Section 310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3). . . . . . . . . . . . . . . . . . . . . . . .Not applicable
(a)(4). . . . . . . . . . . . . . . . . . . . . . . .Not applicable
(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . .608, 610
(c) . . . . . . . . . . . . . . . . . . . . . . . . .Not applicable
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . .605, 613
(c) . . . . . . . . . . . . . . . . . . . . . . . . .Not applicable
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . .701, 702
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
Section 314(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . .1006
(b) . . . . . . . . . . . . . . . . . . . . . . . . .Not applicable
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3). . . . . . . . . . . . . . . . . . . . . . . .Not applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . .Not applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Omitted
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . .502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2). . . . . . . . . . . . . . . . . . . . . . . .Not applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 502, 512, 513
Section 317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . .503, 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
______________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS*
Page
Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions of General Application. . . . 1
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . 1
Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate; control . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . 2
Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request; Company Order . . . . . . . . . . . . . . . . 3
Controlled Subsidiary. . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . 3
corporation. . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . 3
Global Instrument. . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Instrument . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Instrument Register; Instrument Registrar. . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date. . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Notice of Default. . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate. . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . 4
Original Issue Discount Instrument . . . . . . . . . . . . . . 5
Outstanding. . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
- ----------------------------
* NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the indenture.
<PAGE>
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Instrument . . . . . . . . . . . . . . . . . . . . 6
Redemption Date. . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date. . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer. . . . . . . . . . . . . . . . . . . . . . 6
Special Record Date. . . . . . . . . . . . . . . . . . . . . . 7
Stated Maturity. . . . . . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . 7
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Vice President . . . . . . . . . . . . . . . . . . . . . . . . 7
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . 7
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . 8
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 105. Notices, Etc., to Trustee and Company. . . . . . . . . . . . 9
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . . . . . . . . . 10
SECTION 107. Conflict with Trust Indenture Act. . . . . . . . . . . . . . 10
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . 10
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . 10
SECTION 110. Separability Clause. . . . . . . . . . . . . . . . . . . . . 11
SECTION 111. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . 11
SECTION 112. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE TWO
Instrument Forms. . . . . . . . . . . . . . 11
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 202. Form of Trustee's Certificate of Authentication. . . . . . . 12
SECTION 203. Form of Legend for Global Instruments. . . . . . . . . . . . 12
ARTICLE THREE
The Instruments. . . . . . . . . . . . . . 12
SECTION 301. Amount Unlimited; Issuable in Series.. . . . . . . . . . . . 12
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . 15
SECTION 304. Temporary Instruments. . . . . . . . . . . . . . . . . . . . 17
SECTION 305. Registration; Registration of Transfer and Exchange. . . . . 18
SECTION 306. Mutilated, Destroyed, Lost and Stolen Instruments. . . . . . 20
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . 20
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . 22
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . . . . . 23
ARTICLE FOUR
Satisfaction and Discharge . . . . . . . . . . . 23
SECTION 401. Satisfaction and Discharge . . . . . . . . . . . . . . . . . 23
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . 24
ARTICLE FIVE
Remedies. . . . . . . . . . . . . . . . 25
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . . . . . . 25
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . 27
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . 30
SECTION 505. Trustee May Enforce Claims Without Possession of
Instruments. . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . 31
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . 32
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . . . 33
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . 33
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . 33
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . 33
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . 34
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . 34
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . 35
SECTION 515. Waiver of Usury, Stay or Extension Laws. . . . . . . . . . . 36
ARTICLE SIX
The Trustee. . . . . . . . . . . . . . . 36
SECTION 601. Certain Duties and Responsibilities. . . . . . . . . . . . . 36
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . 36
SECTION 603. Certain Rights of Trustee. . . . . . . . . . . . . . . . . . 36
SECTION 604. Not Responsible for Recitals or Issuance of Instruments. . . 38
SECTION 605. May Hold Instruments . . . . . . . . . . . . . . . . . . . . 38
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . . . . . . . 38
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . 38
SECTION 608. Conflicting Interests. . . . . . . . . . . . . . . . . . . . 39
SECTION 609. Corporate Trustee Required; Eligibility. . . . . . . . . . . 39
SECTION 610. Resignation and Removal; Appointment of Successor. . . . . . 39
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . 41
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 613. Preferential Collection of Claims Against Company. . . . . . 43
SECTION 614. Appointment of Authenticating Agent. . . . . . . . . . . . . 43
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company. . . . . . . 45
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders. . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 702. Preservation of Information; Communications to Holders . . . 45
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . 46
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease. . . . . 47
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms . . . . 47
SECTION 802. Successor Corporation Substituted. . . . . . . . . . . . . . 48
ARTICLE NINE
Supplemental Indentures. . . . . . . . . . . . 48
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . 48
SECTION 902. Supplemental Indentures with Consent of Holders. . . . . . . 49
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . 51
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . . . . . . 51
SECTION 905. Conformity with Trust Indenture Act. . . . . . . . . . . . . 51
SECTION 906. Reference in Instruments to Supplemental Indentures. . . . . 51
ARTICLE TEN
Covenants . . . . . . . . . . . . . . . 52
SECTION 1001. Payment of Principal, Premium and Interest. . . . . . . . . 52
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . 52
SECTION 1003. Money for Instrument Payments to Be Held in Trust . . . . . 52
SECTION 1004. Corporate Existence . . . . . . . . . . . . . . . . . . . . 54
SECTION 1005. Payment of Taxes and Other Claims . . . . . . . . . . . . . 54
SECTION 1006. Statement as to Compliance. . . . . . . . . . . . . . . . . 54
SECTION 1007. Limitation on Disposition of Voting Stock of, and Merger
and Sales of Assets by, the Bank . . . . . . . . . . . . 54
SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . . 55
ARTICLE ELEVEN
Redemption of Instruments . . . . . . . . . . . 55
SECTION 1101. Applicability of Article. . . . . . . . . . . . . . . . . . 55
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . 56
SECTION 1103. Selection by Trustee of Instruments to Be Redeemed. . . . . 56
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . . . . . . 57
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . 58
SECTION 1106. Instruments Payable on Redemption Date. . . . . . . . . . . 58
SECTION 1107. Instruments Redeemed in Part. . . . . . . . . . . . . . . . 58
ARTICLE TWELVE
Sinking Funds . . . . . . . . . . . . . . 59
SECTION 1201. Applicability of Article. . . . . . . . . . . . . . . . . . 59
SECTION 1202. Satisfaction of Sinking Fund Payments with Instruments. . . 59
SECTION 1203. Redemption of Instruments for Sinking Fund. . . . . . . . . 60
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . .61
ACKNOWLEDGMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61
<PAGE>
INDENTURE, dated as of _________ __, 1996, between U. S. Bancorp,
a corporation duly organized and existing under the laws of the state of
Oregon (herein called the "Company"), having its principal office at
111 S.W. Fifth Avenue, Portland, Oregon 97204, and The First National Bank of
Chicago, a national banking association duly organized and existing under the
laws of the United States, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Instruments"), unlimited as to principal amount, to be issued in one or more
series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture
Act of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of
this Indenture and, to the extent applicable, shall be governed by such
provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Instruments by the Holders (as herein defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders
of the Instruments or of any series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) All other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles; and
(4) The words "herein," "hereof," "hereto," and "hereunder" and
other words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
Certain terms used principally in certain Articles are defined in
those Articles.
"Act" when used with respect to any Holder has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Instruments of one or more series.
"Bank" means United States National Bank of Oregon, a national
banking association, and any successor or successors to all or substantially
all of its banking business.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in that Place of Payment are authorized or
obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934
or, if at any time after the execution of this 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 at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, a
Vice Chairman, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Controlled Subsidiary" means any corporation more than 80 percent
of the outstanding Voting Stock of which, except for directors' qualifying
shares, shall at the time be owned directly by the Company.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which, at any particular time, its corporate trust
business shall be administered, which office at the date hereof is located at
One First National Plaza, Suite 0126, Chicago, Illinois 60670-0126,
Attention: Corporate Trust Services Division, except if the Place of Payment
of any Instrument is New York City, then for purposes of Section 1002, such
term shall mean the office or agency of the Trustee in the Borough of
Manhattan, the City of New York, which office at the date hereof is located at
First Chicago Trust Company of New York, 14 Wall Street, Eighth Floor,
New York, New York 10005.
"corporation" includes corporations and, except for purposes of
Article Eight, associations, companies and business trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Instruments of any series
issuable or issued in the form of one or more Global Instruments, the Person
designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have been appointed pursuant to Section 305, and
thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder.
"Event of Default" has the meaning specified in Section 501.
"Global Instrument" means an Instrument bearing the legend
specified in Section 203, evidencing all or part of a series of Instruments,
issued to the Depositary for such series or its nominee, and registered in the
name of such Depositary or nominee.
"Holder" means a Person in whose name an Instrument is registered
in the Instrument Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and, with respect to any Instrument, by the terms and provisions of such
Instrument established pursuant to Section 301 (as such terms and provisions
may be amended pursuant to the applicable provisions hereof).
"Instrument" has the meaning stated in the first recital of this
Indenture and more particularly means any Instruments authenticated and
delivered under this Indenture.
"Instrument Register" and "Instrument Registrar" have the
respective meanings specified in Section 305.
"interest," when used with respect to an Original Issue Discount
Instrument which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Instruments.
"Maturity" when used with respect to any Instrument means the date
on which the principal of such Instrument or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified
in Section 501(4) or 501(5).
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, a Vice Chairman, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company that complies with the requirements of Section 314(e) of the Trust
Indenture Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be an employee of or counsel for the Company, that complies with the
requirements of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Instrument" means any Instrument which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding" when used with respect to Instruments means, as of
the date of determination, all Instruments theretofore authenticated and
delivered under this Indenture, except:
(i) Instruments theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Instruments for whose payment or redemption money in the
necessary amount has theretofore been deposited in trust with the
Trustee or any Paying Agent (other than the Company) or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Instruments; provided that, if
such Instruments are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made; and
(iii) Instruments which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Instruments have been
authenticated and delivered pursuant to this Indenture, other than any
such Instruments in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Instruments are held by a
bona fide purchaser in whose hands such Instruments are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Instruments have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, (i) the
principal amount of an Original Issue Discount Instrument that shall be deemed
to be Outstanding shall be equal to the amount of the principal thereof that
would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof pursuant to Section 502, and
(ii) Instruments owned by the Company or any other obligor upon the
Instruments or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Instruments
which the Trustee knows to be so owned shall be so disregarded. Instruments
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 Instruments and that the pledgee is not
the Company or any other obligor upon the Instruments or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Instruments on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to Instruments of any
series, means the place or places where the principal of (and premium, if any)
or interest on the Instruments of such series is payable as specified as
contemplated by Section 301.
"Predecessor Instrument" of any particular Instrument means every
previous Instrument evidencing all or a portion of the same debt as that
evidenced by such particular Instrument; and, for the purposes of this
definition, any Instrument authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Instrument
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Instrument.
"Redemption Date," when used with respect to any Instrument or
portion thereof to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price," when used with respect to any Instrument or
portion thereof to be redeemed, means the price at which it is to be redeemed
as determined by or pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Instruments of any series means the date specified for
that purpose as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any
Vice President, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter
is referred because of his knowledge of and familiarity with the particular
subject.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Instrument or any
installment of principal thereof or interest thereon, means the date specified
in such Instrument as the fixed date on which the principal of such Instrument
or such installment of principal thereof or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
Voting Stock of which is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Instruments of any series shall mean the Trustee with respect
to the Instruments of such series.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
"Voting Stock," as applied to the stock (or the equivalent
thereof) of any corporation, means stock (or such equivalent) of any class or
classes, however designated, which ordinarily has voting power (whether at all
times or only so long as no senior class of stock has such voting power by
reason of the happening of a contingency) for the election of a majority of
the directors of such corporation, other than stock (or such equivalent)
having such voting power only by reason of the happening of a contingency.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as
to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished. Each such
Officers' Certificate and Opinion of Counsel shall comply with Section 314(e)
of the Trust Indenture Act.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other reasonable manner which the Trustee deems
sufficient.
(c) The ownership of Instruments shall be proved by the
Instrument Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action of the Holder of any Instrument shall bind
every future Holder of the same Instrument and the Holder of every Instrument
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by
the Trustee, any Instrument Registrar, any Paying Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Instrument.
SECTION 105. Notices, Etc., to Trustee and Company.
Except as otherwise specifically provided herein, any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with,
(1) The Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Services Division, or
(2) The Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at 111 S.W. Fifth Avenue,
Portland, Oregon 97204, Attention: Corporate Secretary Division, or at
any other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears in the Instrument
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders and any
notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given. 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 any case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act which is required under the Trust
Indenture Act to be a part of and govern this Indenture, the latter provision
shall control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or
to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Instruments
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Instruments, express or
implied, shall give to any Person, other than the parties hereto, any Paying
Agent, any Instrument Registrar, any Authenticating Agent and their respective
successors hereunder, and the Holders of Instruments, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Instruments shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Instrument shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Instruments)
payment of interest or principal (and premium, if any) 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 Interest Payment Date or Redemption Date,
or at the Stated Maturity, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
ARTICLE TWO
Instrument Forms
SECTION 201. Forms Generally.
The Instruments of each series shall be in substantially the form
as shall be established in or pursuant to a resolution of the Board of
Directors or in one or more indentures supplemental hereto, in each case, with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities
exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Instruments, as evidenced by their
execution of the Instruments. If the form of Instruments of any series is
established by action taken pursuant to a Board Resolution, an appropriate
Officers' Certificate setting forth such form, together with the Board
Resolution, shall be delivered to the Trustee and any Authenticating Agent at
or prior to the delivery of the Company Order contemplated by Section 303 for
the authentication and delivery of such Instruments.
The definitive Instruments shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner, all as determined by the
officers executing such Instruments, as evidenced by their execution of such
Instruments.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 614, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Instruments of the series
designated herein referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By_____________________________
Authorized Officer
SECTION 203. Form of Legend for Global Instruments.
Unless otherwise specified as contemplated by Section 301 for the
Instruments evidenced thereby, every Global Instrument authenticated and
delivered hereunder shall bear a legend in substantially the following form:
"This Instrument is a Global Instrument within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Instrument is exchangeable for
Instruments registered in the name of a Person other than the Depositary or
its nominee only in the limited circumstances described in the Indenture, and
no transfer of this Instrument (other than a transfer of this Instrument 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 such limited circumstances."
ARTICLE THREE
The Instruments
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Instruments which may be
authenticated and delivered under this Indenture is unlimited. The
Instruments may be issued in one or more series.
There shall be established in or pursuant to a Board Resolution,
and set forth in an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Instruments of any
series:
(1) The title of the Instruments of the series (which shall
distinguish the Instruments of the series from all other Instruments);
(2) Any limit upon the aggregate principal amount of the
Instruments of the series which may be authenticated and delivered under
this Indenture (except for Instruments authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Instruments of the series pursuant to Section 304, 305, 306, 906 or
1107);
(3) The date or dates on which the principal of (and premium, if
any, on) the Instruments of the series is payable;
(4) The rate or rates at which the Instruments of the series
shall bear interest, if any, or the method or methods, if any, by which
such rate or rates are to be determined, the date or dates, if any, from
which such interest shall accrue, the Interest Payment Dates, if any, on
which such interest shall be payable, the Regular Record Dates, if any,
for the interest payable on any Interest Payment Date, the rate or rates
of interest, if any, payable on overdue installments of interest on or
principal of (and premium, if any, on) the Instruments of the series and
the basis upon which interest shall be calculated if other than a
360-day year of twelve 30-day months;
(5) The place or places where the principal of (and premium, if
any) and interest, if any, on the Instruments of the series shall be
payable, any of such Instruments may be surrendered for registration of
transfer or exchange, and notices or demands to or upon the Company in
respect of such Instruments and this Indenture may be served; provided,
however, that, at the option of the Company, any interest on such
Instruments may be paid by check mailed to the address of the Person
entitled thereto as such address shall appear in the Instrument
Register;
(6) If the Instruments of the series are redeemable, the period
or periods within which, the price or prices at which and the other
terms and conditions upon which such Instruments may be redeemed, in
whole or in part, at the option of the Company and, if other than by a
Board Resolution, the manner in which any election by the Company to
redeem the Instruments shall be evidenced;
(7) If any of the Instruments of the series are issuable upon
original issuance in whole or in part in the form of one or more Global
Instruments and, in such case, the Depositary for such Global Instrument
or Instruments and the circumstances, if any, under which any such
Global Instrument may be exchanged for Instruments registered in the
name of, and any transfer of such Global Instrument may be registered
to, a Person other than such Depositary or its nominee, if other than as
set forth in Section 305;
(8) The obligation, if any, of the Company to redeem or purchase
Instruments of the series pursuant to any sinking fund or analogous
provisions or at the option of any Holder thereof and the period or
periods within which, the price or prices at which and the other terms
and conditions upon which such Instruments shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) If other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Instruments of the series
shall be issuable;
(10) If other than the currency of the United States of America,
the currency, currencies or currency units in which the principal of or
any premium or interest on any Instruments of the series shall be
payable and the manner of determining the equivalent thereof in the
currency of the United States of America for any purpose, including for
purposes of the definition of "Outstanding" in Section 101;
(11) If other than the principal amount thereof, the portion of
the principal amount of Instruments of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion is to be determined;
(12) Any addition to or change in the Events of Default which
applies to any Instruments of the series, and any change in the right of
the Trustee or the requisite Holders of such Instruments to declare the
principal thereof due and payable pursuant to Section 502; and
(13) Any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to Instruments of
the series.
All Instruments of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to such Board Resolution and set forth, or determined in the manner
provided, in such Officers' Certificate or in any such indenture supplemental
hereto.
SECTION 302. Denominations.
The Instruments of each series shall be issuable only in
registered form without coupons and only in such denominations as shall be
specified as contemplated by Section 301. In the absence of any such
provisions with respect to the Instruments of any series, the Instruments of
such series shall be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Instruments shall be executed on behalf of the Company by its
Chairman of the Board, one of its Vice Chairmen, its President or one of its
Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Instruments may be manual or facsimile.
Instruments bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Instruments or did not hold such offices at the date of such Instruments.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Instruments of any series executed
by the Company to the Trustee for authentication, together with the Board
Resolution and Officers' Certificate or supplemental indenture with respect to
such Instruments referred to in Section 301 and a Company Order for the
authentication and delivery of such Instruments; and the Trustee, in
accordance with such Company Order, shall authenticate and deliver such
Instruments as in this Indenture provided and not otherwise. If the form or
forms or terms of the Instruments of the series have been established in or
pursuant to one or more Board Resolutions or supplemental indenture as
permitted by Sections 201 and 301, in authenticating such Instruments, and
accepting the additional responsibilities under this Indenture in relation to
such Instruments, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating that:
(1) The form or forms and terms of such Instruments have been
established in conformity with the provisions of this Indenture;
(2) All conditions precedent described herein to the
authentication and delivery of such Instruments have been complied with and
that such Instruments, when authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their
terms, subject to the effect of bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws affecting the rights and
remedies of creditors generally and to the effect of general principles of
equity, whether applied by a court of law or equity; and
(3) To such counsel's knowledge after reasonable investigation
all laws and governmental requirements in respect of the execution and
delivery by the Company of such Instruments have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Instruments if the issue of such
Instruments pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Instruments and this Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be
taken.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Instruments of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 301 or the Company Order and Opinion of
Counsel otherwise required pursuant to such preceding paragraph at or prior to
the authentication of each Instrument of such series if such documents are
delivered at or prior to the authentication upon original issuance of the
first Instrument of such series to be issued.
If the Company shall establish pursuant to Section 301 that the
Instruments of a series are to be issued in whole or in part in the form of
one or more Global Instruments, then the Company shall execute, and the
Trustee shall, in accordance with this Section and a Company Order for the
authentication and delivery of a Global Instrument or Instruments of such
series, authenticate and deliver one or more Global Instruments that (i) shall
represent and shall be denominated in an aggregate amount equal to the
aggregate principal amount of the Outstanding Instruments of such series to be
represented by such Global Instrument or Instruments, (ii) shall be registered
in the name of the Depositary for such Global Instrument or Instruments or the
nominee of such Depositary and (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instructions.
Each Depositary designated pursuant to Section 301 as the
Depositary for the Instruments of series issuable in whole or in part in the
form of Global Instruments must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934, as amended.
Each Instrument shall be dated the date of its authentication.
No Instrument shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Instrument a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature. Such
certificate upon any Instrument shall be conclusive evidence, and the only
evidence, that such Instrument has been duly authenticated and delivered
hereunder.
Notwithstanding the foregoing, if any Instrument shall have been
duly authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Instrument to the Trustee for
cancellation as provided in Section 309 together with a written statement
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Instrument has never been issued and
sold by the Company, for all purposes of this Indenture such Instrument shall
be deemed never to have been authenticated and delivered hereunder and shall
not be entitled to the benefits of this Indenture.
SECTION 304. Temporary Instruments.
Pending the preparation of definitive Instruments of any series,
the Company may execute and deliver to the Trustee and, upon Company Order,
the Trustee shall authenticate and deliver, temporary Instruments which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Instruments in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers of
the Company executing such Instruments may determine, as evidenced by their
execution of such Instruments. Such temporary Instruments may be Global
Instruments.
If temporary Instruments of any series are issued, the Company
shall cause definitive Instruments of that series to be prepared without
unreasonable delay. After the preparation of definitive Instruments of such
series, the temporary Instruments of such series shall be exchangeable for
definitive Instruments of such series upon surrender of the temporary
Instruments of such series at any office or agency of the Company designated
pursuant to Section 1002 without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Instruments of any series, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive Instruments of the same series, of
any authorized denominations and of like tenor and aggregate principal amount.
Until so exchanged, the temporary Instruments of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Instruments of such series and tenor.
SECTION 305. Registration; Registration of Transfer and Exchange.
With respect to each series of Instruments, the Company shall
cause to be kept at one of the offices or agencies to be maintained by the
Company as provided in Section 1002 a register (herein sometimes referred to
as the "Instrument Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of that
series of Instruments and of transfers of that series of Instruments. Such
office or agency shall be the "Instrument Registrar" for that series of
Instruments. In the event that the Trustee shall not be the Instrument
Registrar, the Instrument Register and the records of the Instrument Registrar
relating to the performance of its duties as such shall be open for inspection
by the Trustee at all reasonable times. The Trustee is hereby initially
appointed as Instrument Registrar for each series of Instruments.
Upon surrender for registration of transfer of any Instrument of a
series at said office or agency for that series, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Instruments of the same series, of
any authorized denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Instruments of any series may be
exchanged for other Instruments of the same series, of any authorized
denominations and of like tenor and aggregate principal amount, upon surrender
of the Instruments to be exchanged at such office or agency for such series.
Whenever any Instruments are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Instruments which
the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing and except as otherwise provided in
or pursuant to this Indenture, any Global Instrument shall be exchangeable
pursuant to this Section 305 or Sections 304, 306, 906 and 1107 for
Instruments registered in the name of, and a transfer of a Global Instrument
of any series may be registered to, any Person other than the Depositary for
such Instrument or its nominee only if (i) such Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for such
Global Instrument or if at any time such Depositary ceases to be a clearing
agency registered under the Securities Exchange Act of 1934, as amended, and
the Company within 90 days after receiving such notice or becoming aware that
the Depositary is no longer so registered, does not appoint a successor
Depositary for such Global Instrument, (ii) the Company executes and delivers
to the Trustee a Company Order to the effect that such Global Instrument shall
be so exchangeable and the transfer thereof so registrable or (iii) there
shall have occurred and be continuing with respect to the Instruments of such
series, an Event of Default or an event which after notice or lapse of time
would be an Event of Default. Upon the occurrence in respect of any Global
Instrument of any series of any one or more of the conditions specified in
clauses (i), (ii) or (iii) of the preceding sentence or such other conditions
as may be specified as contemplated by Section 301 for such series, (A) such
Global Instrument may be exchanged in accordance with the foregoing provisions
of this Section 305 for an Instrument which is not a Global Instrument and
(B) in accordance with the foregoing provisions of this Section 305 the
transfer of such Global Instrument may be registered to such Persons
(including Persons other than the Depositary with respect to such series and
its nominees) as such Depositary shall designate, and the new Instrument or
Instruments authenticated and delivered upon such registration of transfer
shall not bear the legend specified in Section 203. Notwithstanding any other
provision of this Indenture, any Instrument authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, any Global
Instrument shall also be a Global Instrument and shall bear the legend
specified in Section 203 except for any Instrument authenticated and delivered
in exchange for, or upon registration of transfer of, a Global Instrument
pursuant to the preceding sentence.
All Instruments issued upon any registration of transfer or
exchange of Instruments shall be the valid obligations of the Company,
evidencing the same debt, and entitling the Holders thereof to the same
benefits under this Indenture, as the Instruments surrendered upon such
registration of transfer or exchange.
Every Instrument presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee
or the Instrument Registrar for such series of Instruments) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Instrument Registrar (and, if so required by the Trustee,
to the Trustee) duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Instruments, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Instruments,
other than exchanges expressly provided in this Indenture to be made at the
Company's own expense or without expense or without charge to Holders.
If the Instruments of any series (or of any series and specified
tenor) are to be redeemed in part, the Company shall not be required (i) to
issue, register the transfer of or exchange any Instrument of that series (or
that series and specified tenor, as the case may be) during a period beginning
at the opening of business 15 days before the day of the mailing of a notice
of redemption of any such Instruments selected for redemption under
Section 1103 and ending at the close of business on the day of such mailing,
or (ii) to register the transfer of or exchange any Instrument so selected for
redemption in whole or in part, except the unredeemed portion of any
Instrument being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Instruments.
If there shall be delivered to the Company and the Trustee (i) a
mutilated Instrument or evidence to their satisfaction of the destruction,
loss or theft of any Instrument and (ii) such security or indemnity as may be
required by them to save each of them and any agent of each of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Instrument has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Instrument, a new Instrument of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Instrument
has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Instrument, pay such Instrument.
Upon the issuance of any new Instrument under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Instrument of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Instrument shall constitute
an original additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Instrument shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Instruments of that series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Instruments.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Instrument which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Instrument (or one or more Predecessor Instruments)
is registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Instrument of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to
the Holder thereof on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Instruments of such series
(or their respective Predecessor Instruments) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Instrument of such series and the
date of proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest
as in this Clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
to be mailed, first-class postage prepaid, to each Holder of Instruments
of such series at his address as it appears in the Instrument Register,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Instruments of such series (or their
respective Predecessor Instruments) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Instruments of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Instruments may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Instrument delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Instrument shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Instrument.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of an Instrument for registration of
transfer, the Company, the Trustee, any Paying Agent, any Authenticating Agent
and any other agent of the Company or the Trustee may treat the Person in
whose name such Instrument is registered as the owner of such Instrument for
the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 307) any interest on such Instrument and for all other
purposes whatsoever, whether or not any payment with respect to such
Instrument be overdue, and neither the Company, the Trustee, any Paying Agent,
any Authenticating Agent nor any other agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent, any
Authenticating Agent, or any other agent of the Company or the Trustee will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in a Global
Instrument or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests, and they shall be fully protected in
acting or refraining from acting on any information provided by a Depositary.
Notwithstanding the foregoing, with respect to any Global
Instrument, nothing herein shall prevent the Company, the Trustee, or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by a Depositary or
impair, as between a Depositary and holders of beneficial interests in any
Global Instrument, the operation of customary practices governing the exercise
of the rights of the Depositary (or its nominee) as Holder of such Global
Instrument.
SECTION 309. Cancellation.
All Instruments surrendered for payment, redemption, registration
of transfer or exchange, or for credit against any sinking fund payment shall,
if surrendered to the Company, any Paying Agent, any Authenticating Agent or
any other agent of the Company, be delivered to the Trustee or the Instrument
Registrar and, if not already canceled, shall be promptly canceled by it. The
Company may at any time deliver to the Trustee or the Instrument Registrar for
cancellation any Instruments previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver
to the Trustee or the Instrument Registrar for cancellation any Instruments
previously authenticated hereunder which the Company has not issued and sold,
and all Instruments so delivered shall be promptly canceled by the Trustee or
the Instrument Registrar. No Instrument shall be authenticated in lieu of or
in exchange for any Instruments canceled as provided in this Section, except
as expressly permitted by this Indenture. All canceled Instruments held by
the Trustee or by the Instrument Registrar shall be destroyed unless otherwise
directed by a Company Order and a certificate of such destruction shall be
delivered to the Company upon its request by the Trustee or the Instrument
Registrar.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Instruments of any series, interest on the Instruments of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this
Indenture shall cease to be of further effect with respect to any series of
Instruments specified in such Company Order (except as to any surviving rights
of registration of transfer or exchange of Instruments of such series herein
expressly provided for) and the Trustee, on receipt of such a Company Order
and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series,
when
(1) either
(A) All Instruments of such series theretofore
authenticated and delivered (other than (i) Instruments of such
series which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii)
Instruments of such series for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to
the Trustee or the Instrument Registrar canceled or for
cancellation; or
(B) All such Instruments of such series not theretofore
delivered to the Trustee or the Instrument Registrar canceled or
for cancellation
(i) Have become due and payable, or
(ii) Will become due and payable at their Stated
Maturity within one year, or
(iii) Are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose money in an amount sufficient to
pay and discharge the entire indebtedness on such Instruments not
theretofore delivered to the Trustee or the Instrument Registrar
canceled or for cancellation, including the principal of (and
premium, if any) and any interest on such Instruments to the date
of such deposit (in the case of Instruments which have become due
and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) The Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Outstanding
Instruments of such series; and
(3) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture as to Instruments of such series have been complied
with.
In the event there are Instruments of two or more series
hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only (i) if
requested to do so with respect to Instruments of such series as to which it
is Trustee and (ii) if the other conditions thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to any series of Instruments, the obligations of the Company to
the Trustee under Section 607, the obligations of the Trustee to any
Authenticating Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of all sums due and to become
due with respect to Instruments for which such money has been deposited for
principal (and premium, if any) and any interest; but such money need not be
segregated from other funds except to the extent required by law.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default," wherever used herein, with respect to
Instruments of any series means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) Default in the payment of any interest on any Instrument of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) Default in the payment of the principal of (or premium, if
any, on) any Instrument of that series at its Maturity; or
(3) Default in the deposit of any sinking fund payment, when and
as due by the terms of an Instrument of that series; or
(4) Default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in the performance or the breach of which is
elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of a series of
Instruments other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Instruments of that series, a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) Default under any bond, debenture, note, or other evidence
of indebtedness for money borrowed (including a default with respect to
Instruments of any series other than that series) or under any mortgage,
indenture, or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed by
the Company, in excess of $15,000,000, whether such indebtedness now
exists or shall hereafter be created, which default shall have resulted
in such indebtedness becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable,
without such indebtedness having been discharged or there having been
deposited in trust a sum sufficient to discharge such indebtedness in
full or without such acceleration having been rescinded or annulled
within a period of 30 days after there shall have been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of not less than 25 percent in
principal amount of the Outstanding Instruments of that series, a
written notice specifying such default and requiring the Company to
cause such indebtedness to be discharged or to cause a sum sufficient to
discharge such indebtedness to be deposited in trust or to cause such
acceleration to be rescinded or annulled and stating that such notice is
a "Notice of Default" hereunder; provided, however, that if such default
shall be remedied or cured by the Company or waived by the holders of
such indebtedness, then the Event of Default hereunder by reason thereof
shall be deemed likewise to have been thereupon remedied, cured, or
waived without any action on the part of the Trustee or any of the
Holders; provided, further, that subject to the provisions of
Sections 601 and 602, the Trustee shall not be deemed to have knowledge
of any such default unless either (A) a Responsible Officer of the
Trustee shall have actual knowledge of such default or (B) the Trustee
shall have received written notice thereof from the Company, from the
trustee then acting under any such mortgage, indenture, or other
instrument (including any other Trustee acting under this Indenture for
any other series of Instruments), from the holder or an agent of any
holder of such indebtedness, or from any Holder; or
(6) The entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding-up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(7) The commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by the Company
to the entry of a decree or order for relief in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by
the Company of a petition or answer or consent seeking reorganization or
relief under any applicable federal or state law, or the consent by the
Company to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by the Company of an
assignment for the benefit of creditors, or the admission by the Company
in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company in furtherance of
any such action; or
(8) A decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to the Bank as a whole or of or relating to all or
substantially all of its property, or for the winding-up or liquidation
of its affairs, shall have been entered, and such decree or order shall
have remained in force undischarged or unstayed for a period of 60
consecutive days; or
(9) The Bank shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to the Bank as a whole or of or relating to all or
substantially all of its property; or
(10) The Bank shall file a petition to take advantage of any
applicable insolvency or reorganization statute or suspend payment of
its obligations generally; or
(11) Any other Event of Default provided pursuant to Section 301
with respect to Instruments of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified
in Section 501(6) or 501(7)) with respect to Instruments of any series at the
time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Instruments of that series may declare the principal (or, if the
Instruments of that series are Original Issue Discount Instruments, such
portion of the principal as may be specified in the terms of that series) of
all the Instruments of that series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal (or specified portion thereof) shall
become immediately due and payable. Upon payment of such amount, all
obligations of the Company in respect of the payment of principal of the
Instruments of such series shall terminate.
If an Event of Default specified in Section 501(6) or 501(7) with
respect to Instruments of any series at the time Outstanding occurs, the
principal amount of all the Instruments of that series (or, if any Instruments
of that series are Original Issue Discount Instruments, such portion of that
principal amount of such Instruments as may be specified by the terms thereof)
shall automatically and without any declaration or other action on the part of
the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect
to Instruments of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of not less than a majority in principal
amount of the Outstanding Instruments of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) The Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) All overdue installments of interest on all
Instruments of that series,
(B) The principal of (and premium, if any, on) any
Instruments of that series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate
or rates borne by or provided for in such Instruments,
(C) To the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or
rates borne by or provided for in such Instruments, and
(D) All sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) All Events of Default with respect to Instruments of that
series, other than the nonpayment of the principal of Instruments of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of any written notice of declaration
of acceleration, or rescission and annulment thereof, with respect to
Instruments of a series all or part of which is represented by a Global
Instrument, from Holders of less than the requisite principal amount of
Outstanding Instruments of such series, the Trustee shall establish a record
date for determining Holders of Outstanding Instruments of such series
entitled to join in such written notice of declaration of acceleration, or
rescission and annulment, as the case may be, which record date shall be at
the close of business on the day the Trustee receives such written notice of
declaration of acceleration, or rescission and annulment, as the case may be.
The Holders on such record date, or their duly designated proxies, and only
such Persons, shall be entitled to join in such written notice of declaration
of acceleration, or rescission and annulment, as the case may be, whether or
not such Holders remain Holders after such record date; provided, however,
that unless such declaration of acceleration, or rescission and annulment, as
the case may be, shall have become effective by virtue of the
requisite percentage having been obtained prior to the day which is 90 days
after such record date, such written notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no effect. Nothing in this
paragraph shall prevent a Holder, or a proxy of a Holder, of Instruments of
any series from giving, (i) after expiration of such 90-day period, a new
written notice of declaration of acceleration, or rescission and annulment
thereof, as the case may be, that is identical to a written notice of
declaration of acceleration, or rescission and annulment thereof, which has
been canceled pursuant to the proviso to the preceding sentence, or (ii)
during any such 90-day period, an additional written notice of declaration of
acceleration with respect to any other Event of Default with respect to
Instruments of such series, or an additional written notice of rescission and
annulment of any declaration of acceleration with respect to any other Event
of Default with respect to Instruments of such series, in either of which
events a new record date shall be established pursuant to the provisions of
this Section 502 in respect of such new or additional written notice of
declaration of acceleration, or rescission and annulment, as the case may be.
<PAGE>
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) Default is made in the payment of any installment of
interest on any Instrument of any series when such interest becomes due
and payable and such default continues for a period of 30 days, or
(2) Default is made in the payment of the principal of (or
premium, if any, on) any Instrument of any series at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of Instruments of such series, the whole amount then due and
payable on Instruments of such series for principal (and premium, if any) and
interest, with interest upon the overdue principal (and premium, if any) and,
to the extent that payment of such interest shall be legally enforceable, upon
overdue installments of interest, at the rate or rates borne by or provided
for in such Instruments; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Instruments
and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
the Instruments, wherever situated.
If an Event of Default with respect to Instruments of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of the Instruments of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or such
Instruments or in aid of the exercise of any power granted herein or therein,
or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Instruments or the property of the Company or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the
Instruments shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of any overdue principal,
premium or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) To file and prove a claim for the whole amount of principal
(or with respect to Original Issue Discount Instruments, such portion of
the principal amount as may be specified in the terms of such
Instruments), and premium, if any, and any interest owing and unpaid in
respect of the Instruments and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) To collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Instruments or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for
the election of a trustee in bankruptcy or similar official and be a member of
a creditors' or similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Instruments.
All rights of action and claims under this Indenture or the
Instruments may be prosecuted and enforced by the Trustee without the
possession of any of the Instruments or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Instruments in
respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Instruments and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and any interest on the Instruments
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Instruments for
principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Instrument of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) Such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to Instruments of
that series;
(2) The Holders of not less than 25% in principal amount of the
Outstanding Instruments of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) Such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) The Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) No direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Instruments of that
series;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture or any Instrument to affect, disturb or prejudice the rights of
any other such Holders or Holders of Instruments of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or
to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Instrument shall have the right, which is absolute and unconditional,
to receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest, if any, on such Instrument on the respective Stated
Maturities specified in such Instrument (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Instruments in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Instrument to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Instruments of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Instruments of such series, provided that
(1) Such direction shall not be in conflict with any rule of
law, with this Indenture or with the Instruments of any such series,
(2) The Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) Such direction is not unduly prejudicial to the rights of
the other Holders of Instruments of such series not joining in such
action.
Upon receipt by the Trustee of any written notice directing the
time, method or place of conducting any such proceeding or exercising any such
trust or power, with respect to Instruments of a series all or part of which
is represented by a Global Instrument, and if such direction is from Holders
of less than a majority in principal amount of Outstanding Instruments of such
series, a record date shall be established for determining Holders of
Outstanding Instruments of such series entitled to join in such notice, which
record date shall be at the close of business on the day the Trustee receives
such notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice
whether or not such Holders remain Holders after such record date; provided,
however, that unless the Holders of a majority in principal amount of the
Outstanding Instruments of such series shall have joined in such notice prior
to the day which is 90 days after such record date, such notice shall
automatically and without further action by any Holder be canceled and of no
effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a
Holder, from giving, (i) after expiration of such 90-day period, a new notice
identical to a notice which has been canceled pursuant to the proviso to the
preceding sentence, or (ii) during any such 90-day period, a new direction
contrary to or otherwise different from such direction, in either of which
events a new record date shall be established pursuant to the provisions of
this Section 512 in respect of such new direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Instruments of any series may, on behalf of the Holders of all the
Instruments of such series, waive any past default hereunder with respect to
such series and its consequences, except a default
(1) In the payment of the principal of (or premium, if any) or
interest, if any, on any Instrument of such series, or
(2) In respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Instrument of such series affected.
The Company may, but shall not be obligated to, fix a record date
in accordance with the Trust Indenture Act for the purpose of determining the
Persons entitled to waive any past default hereunder. If a record date is
fixed, the Holders on such record date, or their duly designated proxies, and
only such Persons, shall be entitled to waive any default hereunder, whether
or not such Holders remain Holders after such record date; provided, however,
that unless such majority in principal amount shall have waived such default
prior to the date which is 90 days after such record date, any such waiver
previously given shall automatically and without further action by any Holder
be canceled and of no effect.
Upon any such waiver, such default shall cease to exist and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Instrument by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit, other than the Trustee, of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorney fees at trial and on appeal,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such.party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, the Trustee, or any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding Instruments of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Instrument
on or after the respective Stated Maturities specified in such Instrument (or,
in the case of redemption, on or after the Redemption Date).
SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Instruments of any
series, the Trustee shall give the Holders of Instruments of such series
notice of such default as and to the extent provided by the Trust Indenture
Act; provided, however, that in the case of any default of the character
specified in Section 501(4) with respect to Instruments of such series, no
such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Instruments of such series.
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SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order (in each
case, other than delivery of any Instrument to the Trustee for authentication
and delivery pursuant to Section 303, which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(d) The Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine, during business hours and upon reasonable
notice, the books, records and premises of the Company, personally or by agent
or attorney; and
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Instruments.
The recitals contained herein and in the Instruments, except in
the certificates of authentication, shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Instruments, except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Instruments and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility on
Form T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Company of the
Instruments or the proceeds thereof.
SECTION 605. May Hold Instruments.
The Trustee, any Paying Agent, any Authenticating Agent, any
Instrument Registrar or any other agent of the Trustee or the Company, in its
individual or any other capacity, may become the owner or pledgee of
Instruments and, subject to Sections 608 and 613, may otherwise deal with the
Company with the same rights it would have if it were not Trustee, Paying
Agent, Authenticating Agent, Instrument Registrar or such other agent.
SECTION 606. Money Held in Trust.
Except as provided in Section 1003, money held by the Trustee or
any Paying Agent in trust hereunder need not be segregated from other funds
except to the extent required by law. Neither the Trustee nor any Paying
Agent shall be under any liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) To pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) Except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel and any
Authenticating Agent), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) To indemnify the Trustee and its agents for, and to hold
them harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any
of their powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Instruments
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (and premium, if any) or
interest on Instruments. The obligations of the Company under this Section
shall survive the resignation or removal of the Trustee.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture. To
the extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Instruments of more than one series, or a trustee under the
Indenture relating to Subordinated Debt Instruments, dated as of
_____________, 1996, between the Company and the Trustee.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder
with respect to the Instruments of each series, which may be Trustee hereunder
for Instruments of one or more other series. Each Trustee shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $20,000,000. If at any time the
Trustee with respect to the Instruments of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Instruments of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Instruments of such series.
(c) The Trustee may be removed at any time with respect to the
Instruments of any series by Act of the Holders of a majority in principal
amount of the Outstanding Instruments of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of an Instrument for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution
may remove the Trustee with respect to all Instruments or (ii) subject to
Section 514, any Holder who has been a bona fide Holder of an Instrument for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Instruments and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Instruments of one or more series, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Instruments of that or those series (it being
understood that any such successor Trustee may be appointed with respect to
the Instruments of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Instruments of any
particular series) and shall comply with the applicable requirements of
Section 611. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Instruments of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Instruments of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Instruments of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Instruments of any series shall have
been so appointed by the Company or the Holders of Instruments of such series
and accepted appointment in the manner required by Section 611, any Holder who
has been a bona fide Holder of an Instrument of such series for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Instruments of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Instruments of any series and each
appointment of a successor Trustee with respect to the Instruments of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Instruments of such series as their names and
addresses appear in the Instrument Register. Each notice shall include the
name of the successor Trustee with respect to the Instruments of such series
and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Instruments, such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Instruments of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Instruments of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Instruments of that or those series to which the appointment of
such successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Instruments, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Instruments of that or
those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and
that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Trustee; and, upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee shall, with
respect to the Instruments of that or those series to which the appointment of
such successor Trustee relates, have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture other than as
hereinafter set forth, and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Instruments of
that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Instruments of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Instruments shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Instruments so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Instruments.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Instruments), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Instruments remain Outstanding, the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Instruments which shall be authorized to act on behalf of the
Trustee to authenticate Instruments of that or those series issued upon
original issue, exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Instruments so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Instruments by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on
behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent.
Each such Authenticating Agent shall be acceptable to the Company
and shall at all times be a corporation that would be permitted by the Trust
Indenture Act to act as trustee under an indenture qualified under the Trust
Indenture Act, is authorized under applicable law and its charter to act as
Authenticating Agent and has a combined capital and surplus of at least
$10,000,000. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of any Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the execution or filing of
any paper or any further act on the part of the Trustee or the Authenticating
Agent.
Any Authenticating Agent may resign at any time by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time, terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time any Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which must be acceptable to the Company and shall mail
notice of such appointment to all Holders of Instruments of the series with
respect to which such Authenticating Agent will serve as the names and
addresses of such Holders appear in the Instrument Register. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder, shall
become vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The provisions of Sections 104, 308, 601, 603 and 604 shall also
be applicable to any Authenticating Agent.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, to
reimburse it for all reasonable expenses, disbursements and advances incurred
or made by it and to indemnify it for and hold it harmless against any loss,
liability or expense incurred hereunder to the same extent as the Company is
required to pay, reimburse or indemnify the Trustee under Section 607 and the
Trustee shall have no obligation with respect to such expenses, disbursements,
advances or indemnities.
If an appointment with respect to one or more series of
Instruments is made pursuant to this Section, the Instruments of such series
may have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication in
the following form:
This is one of the Instruments of the series
designated herein referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By __________________________
As Authenticating Agent
By __________________________
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company will furnish or cause to be furnished to the Trustee with respect to
the Instruments of each series (a) semi-annually, either (i) not later than
June 30 and December 31 in each year in the case of Instruments with Interest
Payment Dates occurring less often than once every six months and Original
Issue Discount Instruments which by their terms bear interest only after
Maturity, or (ii) not later than 15 days after each Regular Record Date in the
case of Instruments of any other series, if and so long as Instruments of such
series are Outstanding, and (b) at such other times as the Trustee may request
in writing, within 30 days after receipt by the Company of any such request, a
list in such form as the Trustee may reasonably require containing all the
information in the possession or control of the Company, or any of its Paying
Agents other than the Trustee, as to the names and addresses of the Holders of
such series; provided, however, that no such list need be furnished if the
Trustee shall be the Instrument Registrar. Any such list shall be dated as of
a date not more than 15 days prior to the time such information is furnished
or caused to be furnished and need not include information received after such
date; provided, however, that with respect to any list furnished pursuant to
subclause (a)(ii) above, any such list shall be dated as of the Regular Record
Date.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Instruments, and the
corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
Every Holder of Instruments, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Paying Agent nor any Instrument Registrar shall be held
accountable by reason of the disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act, regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a
request made under Section 312(b) of the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year, if required by
Section 313(a) of the Trust Indenture Act, the Trustee shall transmit,
pursuant to Section 313(c) of the Trust Indenture Act, a brief report dated as
of such May 15 with respect to any of the events specified in said
Section 313(a) which may have occurred since the later of the immediately
preceding May 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by
Section 313(b) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d) of the Trust
Indenture Act, as well as to the Company.
SECTION 704. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture
Act, shall:
(1) File with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the Company
is not required to file information, documents or reports pursuant to
either of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a
security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(2) File with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) Transmit to the Holders within 30 days after the filing
thereof with the Trustee, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, such summaries of any
information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, unless:
(1) The Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation organized and
validly existing under the laws of the United States of America, any
state thereof or the District of Columbia and shall expressly assume, by
an indenture (or indentures, if at such time there is more than one
Trustee) supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest, if any, on all the
Instruments and the performance or observance of every other covenant of
this Indenture on the part of the Company to be performed or observed;
(2) Immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing;
(3) If, as a result of any such consolidation or merger or such
conveyance, transfer, or lease, Voting Stock of the Bank would become
subject to a security interest that would not be permitted by
Section 1007, the Company or such successor corporation or Person, as
the case may be, shall take such steps as may be necessary effectively
to secure the Instruments equally and ratably with (or prior to) all
indebtedness secured thereby; and
(4) Either the Company or the successor corporation or Person
shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation or merger or any conveyance, transfer or
lease of the properties and assets of the Company substantially as an entirety
in accordance with Section 801, the successor corporation formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor corporation had been named as the Company
herein; and thereafter, except in the case of a lease, the predecessor Person
shall be released from all obligations and covenants under this Indenture and
the Instruments.
<PAGE>
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company (when authorized
by or pursuant to a Board Resolution) and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) To evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Instruments; or
(2) To add to the covenants of the Company for the benefit of
the Holders of all or any series of Instruments (and if such covenants
are to be for the benefit of less than all series of Instruments,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) To add any additional Events of Default with respect to all
or any series of Instruments (as shall be specified in such supplemental
indenture); or
(4) To add to or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Instruments in bearer form, registrable or not registrable
as to principal, and with or without interest coupons; or
(5) To add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Instruments, provided that
any such addition, change or elimination (A) shall neither (i) apply to
any Instrument of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor
(ii) modify the rights of the Holder of any such Instrument with respect
to such provisions or (B) shall become effective only when there is no
such Instrument Outstanding; or
(6) To secure the Instruments; or
(7) To establish the form or terms of Instruments of
any series as permitted by Sections 201 and 301; or
(8) To evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Instruments of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611; or
(9) To cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided such action
shall not adversely affect the interests of the Holders of Instruments
of any series in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Instruments of each series affected by
such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company (when authorized by or pursuant to a Board
Resolution) and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Instruments of such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Instrument affected thereby,
(1) Change the Stated Maturity of the principal of, or any
premium or installment of interest on, any Instrument, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Instrument or any other Instrument that
would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502, or change the Place of Payment
where, or the coin or currency in which, any Instrument or any premium
or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) Reduce the percentage in principal amount of the Outstanding
Instruments of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or
(3) Modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Instrument
affected thereby.
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 Instruments, or which
modifies the rights of the Holders of Instruments of such series with respect
to such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Instruments of any other series.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture, whether or not such
Holders remain Holders after such record date; provided, however, that unless
such consent shall have become effective by virtue of the requisite percentage
having been obtained prior to the date which is 90 days after such record
date, any such consent previously given shall automatically and without
further action by any Holder be canceled and of no effect.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of an Instrument theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Instruments to Supplemental Indentures.
Instruments of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Instruments of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Instruments of such series without charge to the Holders.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest, if any, on the Instruments of each series in
accordance with the terms of the Instruments of such series and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain an office or agency in each Place of
Payment for any series of Instruments where Instruments of that series may be
presented or surrendered for payment, where Instruments of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Instruments of that series
and this Indenture may be served. The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee and, effective at
that time, the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Instruments of one or more series may be
presented or surrendered for any or all the purposes specified above in this
Section, and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in each Place of
Payment for Instruments of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
SECTION 1003. Money for Instrument Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Instruments, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Instruments
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay such principal (and premium, if any)
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Instruments, it will, on or prior to each due date of the principal
of (and premium, if any) or interest on any Instruments of that series,
deposit with any Paying Agent for that series a sum sufficient to pay such
principal (and premium, if any) or interest so becoming due, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of
Instruments other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) Comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent; and
(2) At any time during the continuance of any default by the
Company (or any other obligor upon the Instruments of that series) in
the making of any payment of principal (and premium, if any) or interest
on the Instruments of that series, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such
Paying Agent in respect of the Instruments of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability
with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Instrument of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Instrument shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of
the Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company, mail to the Holders at their
addresses as set forth in the Instrument Register, or cause to be published
once, in a newspaper published in the English language, customarily published
on each Business Day and of general circulation at each Place of Payment with
respect to Instruments of such series, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication or mailing, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and material franchises;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 1005. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the Company or any
Subsidiary or upon the income, profits or property of the Company or any
Subsidiary, and (2) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
SECTION 1006. Statement as to Compliance.
Beginning in 199___, the Company will deliver to the Trustee,
within 120 days after the end of each fiscal year, a written statement (which
need not be contained in or accompanied by an Officers' Certificate)
complying with Section 314(a)(4) of the Trust Indenture Act.
SECTION 1007. Limitation on Disposition of Voting Stock of, and Merger and
Sales of Assets by, the Bank.
Subject to the provisions of Article Eight, the Company will not
(1) sell, transfer, or otherwise dispose of any shares of Voting
Stock of the Bank or permit the Bank to issue, sell, or otherwise
dispose of any shares of its Voting Stock, unless, after giving effect
to any such transaction, the Bank remains a Controlled Subsidiary; or
(2) permit the Bank to
(A) merge or consolidate, unless the surviving corporation
is a Controlled Subsidiary; or
(B) convey or transfer its properties and assets
substantially as an entirety to any Person, except to a Controlled
Subsidiary; or
(3) grant a security interest in any shares of Voting Stock of
the Bank.
SECTION 1008. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Instruments of such series, the Company may, with respect to the Instruments
of any series, omit in any particular instance to comply with any term,
provision, or condition set forth in any covenant provided pursuant to
Section 301(12), 901(2), or 901(7) for the benefit of the Holders of such
series or in Sections 1004 and 1005, if before or after the time for such
compliance the Holders of not less than a majority in principal amount of the
Instruments of such series at the time Outstanding shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision, or condition, but no such waiver shall
extend to or affect such term, provision, or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any
such term, provision, or condition shall remain in full force and effect.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to waive any such term,
provision, or condition. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to waive any such term, provision, or condition hereunder, whether or
not such Holders remain Holders after such record date; provided that unless
the Holders of a majority in principal amount of the Outstanding Instruments
of such series shall have waived such term, provision, or condition prior to
the date which is 90 days after such record date, any such waiver previously
given shall automatically and without further action by any Holder be canceled
and of no further effect.
ARTICLE ELEVEN
Redemption of Instruments
SECTION 1101. Applicability of Article.
Redemption of Instruments of any series at the election of the
Company as permitted or required by the terms of such Instruments shall be
made in accordance with the terms of such Instruments and (except as otherwise
specified as contemplated by Section 301 for Instruments of any series) in
accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Instruments shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Company of less than all the Instruments of any series
(including any such redemption affecting only a single Instrument), the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date, of the principal amount of Instruments of
such series to be redeemed, of the Redemption Price and, if applicable, of the
tenor of the Instruments to be redeemed. In the case of any redemption of
Instruments prior to the expiration of any restriction on such redemption
provided in the terms of such Instruments or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Instruments to Be Redeemed.
If less than all the Instruments of any series are to be redeemed
(unless all the Instruments of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Instrument), the
particular Instruments to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Instruments
of such series not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of a portion of the principal amount of any
Instrument of such series; provided that the unredeemed portion of the
principal amount of any Instrument shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such
Instrument. If less than all the Instruments of such series and of a
specified tenor are to be redeemed (unless such redemption affects only a
single Instrument), the particular Instruments to be redeemed shall be
selected not more than 60 days prior to the redemption date by the Trustee,
from the Outstanding Instruments of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
In any case where multiple Instruments of such series are registered in the
same name, the Trustee shall upon the direction of the Company treat the
aggregate principal amount so registered as if it were represented by one
Instrument of such series.
The Trustee shall promptly notify the Company and the Instrument
Registrar (if other than itself) in writing of the Instruments selected for
redemption and, in the case of any Instrument selected for partial redemption,
the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply
with respect to any redemption affecting only a single Instrument, whether
such Instrument is to be redeemed in whole or in part. In the case of any
such redemption in part, the unredeemed portion of the principal amount of the
Instrument shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Instrument.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Instruments shall
relate, in the case of any Instruments redeemed or to be redeemed only in
part, to the portion of the principal amount of such Instruments which has
been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Instruments to be redeemed,
to each Holder of Instruments to be redeemed.
All notices of redemption shall state:
(1) The Redemption Date,
(2) The Redemption Price,
(3) If less than all the Outstanding Instruments of
any series consisting of more than a single Instrument are to be
redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Instruments to be redeemed,
and, if less than all the Outstanding Instruments of any series
consisting of a single Instrument are to be redeemed, the principal
amount of the particular Instrument to be redeemed,
(4) That, on the Redemption Date, the Redemption Price will
become due and payable upon each such Instrument or portion thereof to
be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date,
(5) The place or places where each such Instrument is to be
surrendered for payment of the Redemption Price,
(6) That the redemption is for a sinking fund, if such is the
case, and
(7) The CUSIP number of the Instruments being redeemed.
Notice of redemption of Instruments to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit in
trust with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest, if
any, on, all the Instruments or portions thereof which are to be redeemed on
that date.
SECTION 1106. Instruments Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Instruments so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the Redemption Price
and accrued interest) such Instruments shall cease to bear interest. Upon
surrender of any such Instrument for redemption in accordance with said
notice, such Instrument shall be paid by the Company at the Redemption Price,
together with accrued interest, if any, to the Redemption Date; provided,
however, that, unless otherwise specified as contemplated by Section 301,
installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Instruments, or one or
more Predecessor Instruments, registered as such at the close of business on
the Regular Record Dates therefor according to their terms and the provisions
of Section 307.
If any Instrument called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate or rates
prescribed therefor in such Instrument.
SECTION 1107. Instruments Redeemed in Part.
Any Instrument which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company, the Trustee or the Instrument
Registrar so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company, the Trustee or the Instrument Registrar
duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Instrument without service charge, a new
Instrument or Instruments of the same series, of like tenor and of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Instrument so surrendered. If a Global Instrument is so surrendered, the
Company shall execute, and the Trustee shall authenticate and deliver to the
Depositary for such Global Instrument as shall be specified in the Company
Order with respect thereto, without service charge, a new Global Instrument in
a denomination equal to and in exchange for the unredeemed portion of the
principal of the Global Instrument so surrendered.
ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Instruments of any series except as otherwise
specified as contemplated by Section 301 for Instruments of such series.
The minimum amount of any sinking fund payment provided for by the
terms of the Instruments 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 Instruments of any series is herein referred to
as an "optional sinking fund payment." If provided for by the terms of
Instruments of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Instruments of any series as provided
for by the terms of Instruments of such series.
***
SECTION 1202. Satisfaction of Sinking Fund Payments with Instruments.
The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Instruments of any series to be made pursuant
to the terms of such Instruments, (1) deliver Outstanding Instruments of such
series (other than any previously called for redemption) or (2) apply as a
credit (x) Instruments of such series which have been redeemed (or called for
redemption and for which the Redemption Price, together with accrued interest,
if any, has been deposited pursuant to Section 1105) either at the election of
the Company pursuant to the terms of such Instruments or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Instruments or (y) Instruments theretofore delivered by the Company to
the Trustee for cancellation which have been so canceled; provided that such
Instruments have not been previously so credited. Such Instruments shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Instruments for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Instruments for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
any series of Instruments, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Instruments of that series pursuant to Section 1202, and the optional amount,
if any, to be added in cash to the next ensuing mandatory sinking fund
payment, and will also deliver to the Trustee any Instruments to be credited
and not theretofore so delivered. If such Officers' Certificate shall specify
an optional amount be added to the next ensuing mandatory sinking fund
payment, the Company shall thereupon be obligated to pay the amount therein
specified. Not less than 45 days before each such sinking fund payment date,
the Trustee shall select the Instruments to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. The Company shall deposit the
amount of cash, if any, required for such sinking fund payment in the manner
provided in Section 1105. Such notice having been duly given, the redemption
of such Instruments shall be made upon the terms and in the manner stated in
Sections 1106 and 1107.
* * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
U. S. BANCORP
By THOMAS P. DUCHARME
Executive Vice President
[SEAL]
Attest: SHERYL W. DAWSON
Assistant Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By
[SEAL]
Attest:
STATE OF OREGON )
) ss
COUNTY OF MULTNOMAH )
On this ____ day of ________, 1996, before me, a Notary Public in
and for said County and State, personally appeared the within named THOMAS P.
DUCHARME and SHERYL W. DAWSON, to me known, who being first duly and severally
sworn did say that he, said THOMAS P. DUCHARME, is Executive Vice President,
and that she, said SHERYL W. DAWSON, is Assistant Secretary of U. S. BANCORP,
one of the corporations hereinbefore named; that the seal affixed to the
foregoing instrument is the seal of said corporation; and that said instrument
was signed and sealed in behalf of said corporation by authority of its Board
of Directors.
<PAGE>
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the date first hereinabove written.
[SEAL] Notary Public for Oregon
My Commission Expires:
STATE OF NEW YORK )
) ss
COUNTY OF NEW YORK )
On this _____ day of ____________, 1996, before me, a Notary
Public in and for said County and State, personally appeared the within named
________________ and _______________ to me known, who being first duly and
severally sworn did say that he, said ________________, is _______________,
and that he, said _______________, is ________________ of THE FIRST NATIONAL
BANK OF CHICAGO, one of the corporations hereinbefore named; that the seal
affixed to the foregoing instrument is the seal of said corporation; and that
said instrument was signed and sealed in behalf of said corporation by
authority of its Board of Directors.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the date first hereinabove written.
[SEAL] NOTARY PUBLIC, State of New York
No.
Qualified in _____________ County
Certificate Filed in New York County
Commission expires _____________
<PAGE>
Exhibit 4.2
U. S. BANCORP
AND
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
------------------
INDENTURE
Dated as of _____________, 1996
------------------
Subordinated Debt Instruments
<PAGE>
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS
310 THROUGH 318, INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE ACT SECTION INDENTURE SECTION
Section 310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . .Not applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . .Not applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . .608, 610
(c). . . . . . . . . . . . . . . . . . . . . . . . .Not applicable
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . .605, 613
(c). . . . . . . . . . . . . . . . . . . . . . . . .Not applicable
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . .701, 702
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
Section 314(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . .1006
(b). . . . . . . . . . . . . . . . . . . . . . . . .Not applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . .Not applicable
(d). . . . . . . . . . . . . . . . . . . . . . . . .Not applicable
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . Omitted
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . .502, 512
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . .Not applicable
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c). . . . . . . . . . . . . . . . . . . . . . . . . 502, 512, 513
Section 317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . .503, 504
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
______________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS*
Page
Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions of General Application. . . . 1
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . 1
Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate; control . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request; Company Order . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . 3
corporation. . . . . . . . . . . . . . . . . . . . . . . . . . 3
Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . 3
Global Instrument. . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Instrument . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Instrument Register; Instrument Registrar. . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date. . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Notice of Default. . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate. . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . 4
Original Issue Discount Instrument . . . . . . . . . . . . . . 4
Outstanding. . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Instrument . . . . . . . . . . . . . . . . . . . . 6
Redemption Date. . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date. . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer. . . . . . . . . . . . . . . . . . . . . . 6
Senior Indebtedness. . . . . . . . . . . . . . . . . . . . . . 6
Special Record Date. . . . . . . . . . . . . . . . . . . . . . 7
Stated Maturity. . . . . . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . 7
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Vice President . . . . . . . . . . . . . . . . . . . . . . . . 8
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . 8
- ----------------------------
* NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the indenture.
<PAGE>
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . 8
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . 8
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 105. Notices, Etc., to Trustee and Company. . . . . . . . . . . . 10
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . . . . . . . . . 10
SECTION 107. Conflict with Trust Indenture Act. . . . . . . . . . . . . . 11
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . 11
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . 11
SECTION 110. Separability Clause. . . . . . . . . . . . . . . . . . . . . 11
SECTION 111. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . 11
SECTION 112. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE TWO
Instrument Forms. . . . . . . . . . . . . . 12
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 202. Form of Trustee's Certificate of Authentication. . . . . . . 12
SECTION 203. Form of Legend for Global Instruments. . . . . . . . . . . . 13
ARTICLE THREE
The Instruments. . . . . . . . . . . . . . 13
SECTION 301. Amount Unlimited; Issuable in Series.. . . . . . . . . . . . 13
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . 15
SECTION 304. Temporary Instruments. . . . . . . . . . . . . . . . . . . . 18
SECTION 305. Registration; Registration of Transfer and Exchange. . . . . 18
SECTION 306. Mutilated, Destroyed, Lost and Stolen Instruments. . . . . . 20
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . 21
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . 22
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . . . . . 23
ARTICLE FOUR
Satisfaction and Discharge . . . . . . . . . . . 24
SECTION 401. Satisfaction and Discharge . . . . . . . . . . . . . . . . . 24
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . 25
ARTICLE FIVE
Remedies. . . . . . . . . . . . . . . . 25
SECTION 501. Events of Default; Defaults. . . . . . . . . . . . . . . . . 25
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . 27
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . 30
SECTION 505. Trustee May Enforce Claims Without Possession of
Instruments. . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . 31
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . 31
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . . . 32
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . 32
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . 33
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . 33
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . 33
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . 34
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . 35
SECTION 515. Waiver of Usury, Stay or Extension Laws. . . . . . . . . . . 35
ARTICLE SIX
The Trustee. . . . . . . . . . . . . . . 35
SECTION 601. Certain Duties and Responsibilities. . . . . . . . . . . . . 35
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . 36
SECTION 603. Certain Rights of Trustee. . . . . . . . . . . . . . . . . . 36
SECTION 604. Not Responsible for Recitals or Issuance of Instruments. . . 37
SECTION 605. May Hold Instruments . . . . . . . . . . . . . . . . . . . . 37
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . . . . . . . 38
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . 38
SECTION 608. Conflicting Interests. . . . . . . . . . . . . . . . . . . . 38
SECTION 609. Corporate Trustee Required; Eligibility. . . . . . . . . . . 39
SECTION 610. Resignation and Removal; Appointment of Successor. . . . . . 39
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . 41
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 613. Preferential Collection of Claims Against Company. . . . . . 42
SECTION 614. Appointment of Authenticating Agent. . . . . . . . . . . . . 43
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company. . . . . . . 44
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders. . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 702. Preservation of Information; Communications to Holders . . . 45
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . 45
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease. . . . . 46
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms . . . . 46
SECTION 802. Successor Corporation Substituted. . . . . . . . . . . . . . 47
ARTICLE NINE
Supplemental Indentures. . . . . . . . . . . . 47
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . 47
SECTION 902. Supplemental Indentures with Consent of Holders. . . . . . . 49
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . 50
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . . . . . . 50
SECTION 905. Conformity with Trust Indenture Act. . . . . . . . . . . . . 50
SECTION 906. Reference in Instruments to Supplemental Indentures. . . . . 51
ARTICLE TEN
Covenants . . . . . . . . . . . . . . . 51
SECTION 1001. Payment of Principal, Premium and Interest. . . . . . . . . 51
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . 51
SECTION 1003. Money for Instrument Payments to Be Held in Trust . . . . . 52
SECTION 1004. Corporate Existence . . . . . . . . . . . . . . . . . . . . 53
SECTION 1005. Payment of Taxes and Other Claims . . . . . . . . . . . . . 53
SECTION 1006. Statement as to Compliance. . . . . . . . . . . . . . . . . 53
SECTION 1007. Waiver of Certain Covenants . . . . . . . . . . . . . . . . 54
ARTICLE ELEVEN
Redemption of Instruments . . . . . . . . . . . 54
SECTION 1101. Applicability of Article. . . . . . . . . . . . . . . . . . 54
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . 54
SECTION 1103. Selection by Trustee of Instruments to Be Redeemed. . . . . 55
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . . . . . . 56
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . 56
SECTION 1106. Instruments Payable on Redemption Date. . . . . . . . . . . 57
SECTION 1107. Instruments Redeemed in Part. . . . . . . . . . . . . . . . 57
ARTICLE TWELVE
Sinking Funds . . . . . . . . . . . . . . 58
SECTION 1201. Applicability of Article. . . . . . . . . . . . . . . . . . 58
SECTION 1202. Satisfaction of Sinking Fund Payments with Instruments. . . 58
SECTION 1203. Redemption of Instruments for Sinking Fund. . . . . . . . . 58
ARTICLE THIRTEEN
Subordination of Instruments. . . . . . . . . . . 59
SECTION 1301. Agreement to Subordinate Instruments to Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1302. Payment Permitted if No Default . . . . . . . . . . . . . . 62
SECTION 1303. Limitations on Duties to Holders of Senior Indebtedness . . 62
SECTION 1304. Notice to Trustee of Facts Prohibiting Payments . . . . . . 62
SECTION 1305. Application by Trustee of Moneys Deposited with It. . . . . 63
SECTION 1306. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1307. Subordination Rights Not Impaired by Acts or
Omissions of Company or Holders of Senior Indebtedness. 63
SECTION 1308. Authorization of Trustee to Effectuate Subordination
of Instruments. . . . . . . . . . . . . . . . . . . . . 64
SECTION 1309. Rights of Trustee to Hold Senior Indebtedness . . . . . . . 64
SECTION 1310. Article Applicable to Paying Agents . . . . . . . . . . . . 64
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ACKNOWLEDGMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
<PAGE>
INDENTURE, dated as of _________ __, 1996, between U. S. Bancorp,
a corporation duly organized and existing under the laws of the state of
Oregon (herein called the "Company"), having its principal office at
111 S.W. Fifth Avenue, Portland, Oregon 97204, and The First National Bank of
Chicago, a national banking association duly organized and existing under the
laws of the United States, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein
called the "Instruments"), unlimited as to principal amount, to be issued in
one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture
Act of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of
this Indenture and, to the extent applicable, shall be governed by such
provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Instruments by the Holders (as herein defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders
of the Instruments or of any series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) All other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles; and
(4) The words "herein," "hereof," "hereto," and "hereunder" and
other words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
Certain terms used principally in certain Articles are defined in
those Articles.
"Act" when used with respect to any Holder has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Instruments of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in that Place of Payment are authorized or
obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934
or, if at any time after the execution of this 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 at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, a
Vice Chairman, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which, at any particular time, its corporate trust
business shall be administered, which office at the date hereof is located at
One First National Plaza, Suite 0126, Chicago, Illinois 60670-0126,
Attention: Corporate Trust Services Division, except if the Place of Payment
of any Instrument is New York City, then for purposes of Section 1002, such
term shall mean the office or agency of the Trustee in the Borough of
Manhattan, the City of New York, which office at the date hereof is located at
First Chicago Trust Company of New York, 14 Wall Street, Eighth Floor, New
York, New York 10005.
"corporation" includes corporations and, except for purposes of
Article Eight, associations, companies and business trusts.
"Default" has the meaning specified in Section 501.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Instruments of any series
issuable or issued in the form of one or more Global Instruments, the Person
designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have been appointed pursuant to Section 305, and
thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder.
"Event of Default" has the meaning specified in Section 501.
"Global Instrument" means an Instrument bearing the legend
specified in Section 203, evidencing all or part of a series of Instruments,
issued to the Depositary for such series or its nominee, and registered in the
name of such Depositary or nominee.
"Holder" means a Person in whose name an Instrument is registered
in the Instrument Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and, with respect to any Instrument, by the terms and provisions of such
Instrument established pursuant to Section 301 (as such terms and provisions
may be amended pursuant to the applicable provisions hereof).
"Instrument" has the meaning stated in the first recital of this
Indenture and more particularly means any Instruments authenticated and
delivered under this Indenture.
"Instrument Register" and "Instrument Registrar" have the
respective meanings specified in Section 305.
"interest," when used with respect to an Original Issue Discount
Instrument which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Instruments.
"Maturity" when used with respect to any Instrument means the date
on which the principal of such Instrument or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified
in Section 501(b)(5).
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, a Vice Chairman, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company that complies with the requirements of Section 314(e) of the Trust
Indenture Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be an employee of or counsel for the Company, that complies with the
requirements of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Instrument" means any Instrument which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding" when used with respect to Instruments means, as of
the date of determination, all Instruments theretofore authenticated and
delivered under this Indenture, except:
(i) Instruments theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Instruments for whose payment or redemption money in the
necessary amount has theretofore been deposited in trust with the
Trustee or any Paying Agent (other than the Company) or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Instruments; provided that, if
such Instruments are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made; and
(iii) Instruments which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Instruments have been
authenticated and delivered pursuant to this Indenture, other than any
such Instruments in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Instruments are held by a
bona fide purchaser in whose hands such Instruments are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Instruments have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, (i) the
principal amount of an Original Issue Discount Instrument that shall be deemed
to be Outstanding shall be equal to the amount of the principal thereof that
would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof pursuant to Section 502, and
(ii) Instruments owned by the Company or any other obligor upon the
Instruments or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Instruments
which the Trustee knows to be so owned shall be so disregarded. Instruments
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 Instruments and that the pledgee is not
the Company or any other obligor upon the Instruments or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Instruments on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to Instruments of any
series, means the place or places where the principal of (and premium, if any)
or interest on the Instruments of such series is payable as specified as
contemplated by Section 301.
"Predecessor Instrument" of any particular Instrument means every
previous Instrument evidencing all or a portion of the same debt as that
evidenced by such particular Instrument; and, for the purposes of this
definition, any Instrument authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Instrument
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Instrument.
"Redemption Date," when used with respect to any Instrument or
portion thereof to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price," when used with respect to any Instrument or
portion thereof to be redeemed, means the price at which it is to be redeemed
as determined by or pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Instruments of any series means the date specified for
that purpose as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any
Vice President, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter
is referred because of his knowledge of and familiarity with the particular
subject.
"Senior Indebtedness" means the principal of (and premium, if any)
and unpaid interest on (i) all indebtedness of the Company for money borrowed
(including any deferred obligation for the payment of the purchase price of
property or assets and obligations arising from guarantees by the Company of
the indebtedness of others), (ii) obligations of, or any such obligation
guaranteed by, the Company as lessee under leases required to be capitalized
on the balance sheet of the lessee under generally accepted accounting
principles and leases of property or assets made as part of any sale and
leaseback transaction to which the Company is a party, (iii) obligations of
the Company under letters of credit, and (iv) any indebtedness of the Company
under or other obligations of the Company to make payment pursuant to the
terms of commodity contracts, interest rate and currency swap agreements, cap,
floor and collar agreements, currency spot and forward contracts, and other
similar agreements or arrangements, whether now outstanding or subsequently
created, assumed or incurred, and any deferrals, renewals, or extensions of
any such Senior Indebtedness, other than (x) any obligation as to which, in
the instrument creating or evidencing the same or pursuant to which the same
is outstanding, it is provided that such obligation is not to be superior in
right of payment to the Instruments, (y) any obligation which is subordinated
to senior indebtedness of the Company to substantially the same extent as the
Instruments are subordinated to the Senior Indebtedness, and (z) the
Instruments.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Instrument or any
installment of principal thereof or interest thereon, means the date specified
in such Instrument as the fixed date on which the principal of such Instrument
or such installment of principal thereof or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
Voting Stock of which is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Instruments of any series shall mean the Trustee with respect
to the Instruments of such series.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
"Voting Stock," as applied to the stock (or the equivalent
thereof) of any corporation, means stock (or such equivalent) of any class or
classes, however designated, which ordinarily has voting power (whether at all
times or only so long as no senior class of stock has such voting power by
reason of the happening of a contingency) for the election of a majority of
the directors of such corporation, other than stock (or such equivalent)
having such voting power only by reason of the happening of a contingency.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as
to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished. Each such
Officers' Certificate and Opinion of Counsel shall comply with Section 314(e)
of the Trust Indenture Act.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other reasonable manner which the Trustee deems
sufficient.
(c) The ownership of Instruments shall be proved by the
Instrument Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action of the Holder of any Instrument shall bind
every future Holder of the same Instrument and the Holder of every Instrument
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by
the Trustee, any Instrument Registrar, any Paying Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Instrument.
SECTION 105. Notices, Etc., to Trustee and Company.
Except as otherwise specifically provided herein, any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with,
(1) The Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Services Division, or
(2) The Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at 111 S.W. Fifth Avenue,
Portland, Oregon 97204, Attention: Corporate Secretary Division, or at
any other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears in the Instrument
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders and any
notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given. 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 any case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act which is required under the Trust
Indenture Act to be a part of and govern this Indenture, the latter provision
shall control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or
to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Instruments
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Instruments, express or
implied, shall give to any Person, other than the parties hereto, any Paying
Agent, any Instrument Registrar, any Authenticating Agent and their respective
successors hereunder, the holders of Senior Indebtedness, and the Holders of
Instruments, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Instruments shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Instrument shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Instruments)
payment of interest or principal (and premium, if any) 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 Interest Payment Date or Redemption Date,
or at the Stated Maturity, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
ARTICLE TWO
Instrument Forms
SECTION 201. Forms Generally.
The Instruments of each series shall be in substantially the form
as shall be established in or pursuant to a resolution of the Board of
Directors or in one or more indentures supplemental hereto, in each case, with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities
exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Instruments, as evidenced by their
execution of the Instruments. If the form of Instruments of any series is
established by action taken pursuant to a Board Resolution, an appropriate
Officers' Certificate setting forth such form, together with the Board
Resolution, shall be delivered to the Trustee and any Authenticating Agent at
or prior to the delivery of the Company Order contemplated by Section 303 for
the authentication and delivery of such Instruments.
The definitive Instruments shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner, all as determined by the
officers executing such Instruments, as evidenced by their execution of such
Instruments.
<PAGE>
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 614, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Instruments of the series
designated herein referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By_____________________________
Authorized Officer
SECTION 203. Form of Legend for Global Instruments.
Unless otherwise specified as contemplated by Section 301 for the
Instruments evidenced thereby, every Global Instrument authenticated and
delivered hereunder shall bear a legend in substantially the following form:
"This Instrument is a Global Instrument within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Instrument is exchangeable for
Instruments registered in the name of a Person other than the Depositary or
its nominee only in the limited circumstances described in the Indenture, and
no transfer of this Instrument (other than a transfer of this Instrument 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 such limited circumstances."
ARTICLE THREE
The Instruments
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Instruments which may be
authenticated and delivered under this Indenture is unlimited. The
Instruments may be issued in one or more series.
There shall be established in or pursuant to a Board Resolution,
and set forth in an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Instruments of any
series:
(1) The title of the Instruments of the series (which shall
distinguish the Instruments of the series from all other Instruments);
(2) Any limit upon the aggregate principal amount of the
Instruments of the series which may be authenticated and delivered under
this Indenture (except for Instruments authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Instruments of the series pursuant to Section 304, 305, 306, 906 or
1107);
(3) The date or dates on which the principal of (and premium, if
any, on) the Instruments of the series is payable;
(4) The rate or rates at which the Instruments of the series
shall bear interest, if any, or the method or methods, if any, by which
such rate or rates are to be determined, the date or dates, if any, from
which such interest shall accrue, the Interest Payment Dates, if any, on
which such interest shall be payable, the Regular Record Dates, if any,
for the interest payable on any Interest Payment Date, the rate or rates
of interest, if any, payable on overdue installments of interest on or
principal of (and premium, if any, on) the Instruments of the series and
the basis upon which interest shall be calculated if other than a
360-day year of twelve 30-day months;
(5) The place or places where the principal of (and premium, if
any) and interest, if any, on the Instruments of the series shall be
payable, any of such Instruments may be surrendered for registration of
transfer or exchange, and notices or demands to or upon the Company in
respect of such Instruments and this Indenture may be served; provided,
however, that, at the option of the Company, any interest on such
Instruments may be paid by check mailed to the address of the Person
entitled thereto as such address shall appear in the Instrument
Register;
(6) If the Instruments of the series are redeemable, the period
or periods within which, the price or prices at which and the other
terms and conditions upon which such Instruments may be redeemed, in
whole or in part, at the option of the Company and, if other than by a
Board Resolution, the manner in which any election by the Company to
redeem the Instruments shall be evidenced;
(7) If any of the Instruments of the series are issuable upon
original issuance in whole or in part in the form of one or more Global
Instruments and, in such case, the Depositary for such Global Instrument
or Instruments and the circumstances, if any, under which any such
Global Instrument may be exchanged for Instruments registered in the
name of, and any transfer of such Global Instrument may be registered
to, a Person other than such Depositary or its nominee, if other than as
set forth in Section 305;
(8) The obligation, if any, of the Company to redeem or purchase
Instruments of the series pursuant to any sinking fund or analogous
provisions or at the option of any Holder thereof and the period or
periods within which, the price or prices at which and the other terms
and conditions upon which such Instruments shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) If other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Instruments of the series
shall be issuable;
(10) If other than the currency of the United States of America,
the currency, currencies or currency units in which the principal of or
any premium or interest on any Instruments of the series shall be
payable and the manner of determining the equivalent thereof in the
currency of the United States of America for any purpose, including for
purposes of the definition of "Outstanding" in Section 101;
(11) If other than the principal amount thereof, the portion of
the principal amount of Instruments of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion is to be determined;
(12) Any addition to or change in the Events of Default or
Defaults which applies to any Instruments of the series, and any change
in the right of the Trustee or the requisite Holders of such Instruments
to declare the principal thereof due and payable pursuant to
Section 502; and
(13) Any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to Instruments of
the series.
All Instruments of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to such Board Resolution and set forth, or determined in the manner
provided, in such Officers' Certificate or in any such indenture supplemental
hereto.
The Instruments shall be subordinated in right of payment to
Senior Indebtedness as provided in Article Thirteen.
SECTION 302. Denominations.
The Instruments of each series shall be issuable only in
registered form without coupons and only in such denominations as shall be
specified as contemplated by Section 301. In the absence of any such
provisions with respect to the Instruments of any series, the Instruments of
such series shall be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Instruments shall be executed on behalf of the Company by its
Chairman of the Board, one of its Vice Chairmen, its President or one of its
Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Instruments may be manual or facsimile.
Instruments bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Instruments or did not hold such offices at the date of such Instruments.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Instruments of any series executed
by the Company to the Trustee for authentication, together with the Board
Resolution and Officers' Certificate or supplemental indenture with respect to
such Instruments referred to in Section 301 and a Company Order for the
authentication and delivery of such Instruments; and the Trustee, in
accordance with such Company Order, shall authenticate and deliver such
Instruments as in this Indenture provided and not otherwise. If the form or
forms or terms of the Instruments of the series have been established in or
pursuant to one or more Board Resolutions or supplemental indenture as
permitted by Sections 201 and 301, in authenticating such Instruments, and
accepting the additional responsibilities under this Indenture in relation to
such Instruments, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating that:
(1) The form or forms and terms of such Instruments have been
established in conformity with the provisions of this Indenture;
(2) All conditions precedent described herein to the
authentication and delivery of such Instruments have been complied with and
that such Instruments, when authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their
terms, subject to the effect of bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws affecting the rights and
remedies of creditors generally and to the effect of general principles of
equity, whether applied by a court of law or equity; and
(3) To such counsel's knowledge after reasonable investigation
all laws and governmental requirements in respect of the execution and
delivery by the Company of such Instruments have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Instruments if the issue of such
Instruments pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Instruments and this Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be
taken.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Instruments of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 301 or the Company Order and Opinion of
Counsel otherwise required pursuant to such preceding paragraph at or prior to
the authentication of each Instrument of such series if such documents are
delivered at or prior to the authentication upon original issuance of the
first Instrument of such series to be issued.
If the Company shall establish pursuant to Section 301 that the
Instruments of a series are to be issued in whole or in part in the form of
one or more Global Instruments, then the Company shall execute, and the
Trustee shall, in accordance with this Section and a Company Order for the
authentication and delivery of a Global Instrument or Instruments of such
series, authenticate and deliver one or more Global Instruments that (i) shall
represent and shall be denominated in an aggregate amount equal to the
aggregate principal amount of the Outstanding Instruments of such series to be
represented by such Global Instrument or Instruments, (ii) shall be registered
in the name of the Depositary for such Global Instrument or Instruments or the
nominee of such Depositary and (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instructions.
Each Depositary designated pursuant to Section 301 as the
Depositary for the Instruments of series issuable in whole or in part in the
form of Global Instruments must, at the time of its designation and at all
times while it serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934, as amended.
Each Instrument shall be dated the date of its authentication.
No Instrument shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Instrument a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature. Such
certificate upon any Instrument shall be conclusive evidence, and the only
evidence, that such Instrument has been duly authenticated and delivered
hereunder.
Notwithstanding the foregoing, if any Instrument shall have been
duly authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Instrument to the Trustee for
cancellation as provided in Section 309 together with a written statement
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Instrument has never been issued and
sold by the Company, for all purposes of this Indenture such Instrument shall
be deemed never to have been authenticated and delivered hereunder and shall
not be entitled to the benefits of this Indenture.
SECTION 304. Temporary Instruments.
Pending the preparation of definitive Instruments of any series,
the Company may execute and deliver to the Trustee and, upon Company Order,
the Trustee shall authenticate and deliver, temporary Instruments which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Instruments in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers of
the Company executing such Instruments may determine, as evidenced by their
execution of such Instruments. Such temporary Instruments may be Global
Instruments.
If temporary Instruments of any series are issued, the Company
shall cause definitive Instruments of that series to be prepared without
unreasonable delay. After the preparation of definitive Instruments of such
series, the temporary Instruments of such series shall be exchangeable for
definitive Instruments of such series upon surrender of the temporary
Instruments of such series at any office or agency of the Company designated
pursuant to Section 1002 without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Instruments of any series, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive Instruments of the same series, of
any authorized denominations and of like tenor and aggregate principal amount.
Until so exchanged, the temporary Instruments of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Instruments of such series and tenor.
SECTION 305. Registration; Registration of Transfer and Exchange.
With respect to each series of Instruments, the Company shall
cause to be kept at one of the offices or agencies to be maintained by the
Company as provided in Section 1002 a register (herein sometimes referred to
as the "Instrument Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of that
series of Instruments and of transfers of that series of Instruments. Such
office or agency shall be the "Instrument Registrar" for that series of
Instruments. In the event that the Trustee shall not be the Instrument
Registrar, the Instrument Register and the records of the Instrument Registrar
relating to the performance of its duties as such shall be open for inspection
by the Trustee at all reasonable times. The Trustee is hereby initially
appointed as Instrument Registrar for each series of Instruments.
Upon surrender for registration of transfer of any Instrument of a
series at said office or agency for that series, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Instruments of the same series, of
any authorized denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Instruments of any series may be
exchanged for other Instruments of the same series, of any authorized
denominations and of like tenor and aggregate principal amount, upon surrender
of the Instruments to be exchanged at such office or agency for such series.
Whenever any Instruments are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Instruments which
the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing and except as otherwise provided in
or pursuant to this Indenture, any Global Instrument shall be exchangeable
pursuant to this Section 305 or Sections 304, 306, 906 and 1107 for
Instruments registered in the name of, and a transfer of a Global Instrument
of any series may be registered to, any Person other than the Depositary for
such Instrument or its nominee only if (i) such Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for such
Global Instrument or if at any time such Depositary ceases to be a clearing
agency registered under the Securities Exchange Act of 1934, as amended, and
the Company within 90 days after receiving such notice or becoming aware that
the Depositary is no longer so registered, does not appoint a successor
Depositary for such Global Instrument, (ii) the Company executes and delivers
to the Trustee a Company Order to the effect that such Global Instrument shall
be so exchangeable and the transfer thereof so registrable or (iii) there
shall have occurred and be continuing with respect to the Instruments of such
series, a Default or an event which after notice or lapse of time would be a
Default. Upon the occurrence in respect of any Global Instrument of any
series of any one or more of the conditions specified in clauses (i), (ii) or
(iii) of the preceding sentence or such other conditions as may be specified
as contemplated by Section 301 for such series, (A) such Global Instrument may
be exchanged in accordance with the foregoing provisions of this Section 305
for an Instrument which is not a Global Instrument and (B) in accordance with
the foregoing provisions of this Section 305 the transfer of such Global
Instrument may be registered to such Persons (including Persons other than the
Depositary with respect to such series and its nominees) as such Depositary
shall designate, and the new Instrument or Instruments authenticated and
delivered upon such registration of transfer shall not bear the legend
specified in Section 203. Notwithstanding any other provision of this
Indenture, any Instrument authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, any Global Instrument shall
also be a Global Instrument and shall bear the legend specified in Section 203
except for any Instrument authenticated and delivered in exchange for, or upon
registration of transfer of, a Global Instrument pursuant to the preceding
sentence.
All Instruments issued upon any registration of transfer or
exchange of Instruments shall be the valid obligations of the Company,
evidencing the same debt, and entitling the Holders thereof to the same
benefits under this Indenture, as the Instruments surrendered upon such
registration of transfer or exchange.
Every Instrument presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee
or the Instrument Registrar for such series of Instruments) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Instrument Registrar (and, if so required by the Trustee,
to the Trustee) duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Instruments, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Instruments,
other than exchanges expressly provided in this Indenture to be made at the
Company's own expense or without expense or without charge to Holders.
If the Instruments of any series (or of any series and specified
tenor) are to be redeemed in part, the Company shall not be required (i) to
issue, register the transfer of or exchange any Instrument of that series (or
that series and specified tenor, as the case may be) during a period beginning
at the opening of business 15 days before the day of the mailing of a notice
of redemption of any such Instruments selected for redemption under
Section 1103 and ending at the close of business on the day of such mailing,
or (ii) to register the transfer of or exchange any Instrument so selected for
redemption in whole or in part, except the unredeemed portion of any
Instrument being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Instruments.
If there shall be delivered to the Company and the Trustee (i) a
mutilated Instrument or evidence to their satisfaction of the destruction,
loss or theft of any Instrument and (ii) such security or indemnity as may be
required by them to save each of them and any agent of each of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Instrument has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Instrument, a new Instrument of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Instrument
has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Instrument, pay such Instrument.
Upon the issuance of any new Instrument under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Instrument of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Instrument shall constitute
an original additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Instrument shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Instruments of that series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Instruments.
<PAGE>
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Instrument which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Instrument (or one or more Predecessor Instruments)
is registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Instrument of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to
the Holder thereof on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Instruments of such series
(or their respective Predecessor Instruments) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Instrument of such series and the
date of proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest
as in this Clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
to be mailed, first-class postage prepaid, to each Holder of Instruments
of such series at his address as it appears in the Instrument Register,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Instruments of such series (or their
respective Predecessor Instruments) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Instruments of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Instruments may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Instrument delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Instrument shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Instrument.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of an Instrument for registration of
transfer, the Company, the Trustee, any Paying Agent, any Authenticating Agent
and any other agent of the Company or the Trustee may treat the Person in
whose name such Instrument is registered as the owner of such Instrument for
the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 307) any interest on such Instrument and for all other
purposes whatsoever, whether or not any payment with respect to such
Instrument be overdue, and neither the Company, the Trustee, any Paying Agent,
any Authenticating Agent nor any other agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent, any
Authenticating Agent, or any other agent of the Company or the Trustee will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in a Global
Instrument or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests, and they shall be fully protected in
acting or refraining from acting on any information provided by a Depositary.
Notwithstanding the foregoing, with respect to any Global
Instrument, nothing herein shall prevent the Company, the Trustee, or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by a Depositary or
impair, as between a Depositary and holders of beneficial interests in any
Global Instrument, the operation of customary practices governing the exercise
of the rights of the Depositary (or its nominee) as Holder of such Global
Instrument.
SECTION 309. Cancellation.
All Instruments surrendered for payment, redemption, registration
of transfer or exchange, or for credit against any sinking fund payment shall,
if surrendered to the Company, any Paying Agent, any Authenticating Agent or
any other agent of the Company, be delivered to the Trustee or the Instrument
Registrar and, if not already canceled, shall be promptly canceled by it. The
Company may at any time deliver to the Trustee or the Instrument Registrar for
cancellation any Instruments previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver
to the Trustee or the Instrument Registrar for cancellation any Instruments
previously authenticated hereunder which the Company has not issued and sold,
and all Instruments so delivered shall be promptly canceled by the Trustee or
the Instrument Registrar. No Instrument shall be authenticated in lieu of or
in exchange for any Instruments canceled as provided in this Section, except
as expressly permitted by this Indenture. All canceled Instruments held by
the Trustee or by the Instrument Registrar shall be destroyed unless otherwise
directed by a Company Order and a certificate of such destruction shall be
delivered to the Company upon its request by the Trustee or the Instrument
Registrar.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Instruments of any series, interest on the Instruments of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this
Indenture shall cease to be of further effect with respect to any series of
Instruments specified in such Company Order (except as to any surviving rights
of registration of transfer or exchange of Instruments of such series herein
expressly provided for) and the Trustee, on receipt of such a Company Order
and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series,
when
(1) either
(A) All Instruments of such series theretofore
authenticated and delivered (other than (i) Instruments of such
series which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii)
Instruments of such series for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to
the Trustee or the Instrument Registrar canceled or for
cancellation; or
(B) All such Instruments of such series not theretofore
delivered to the Trustee or the Instrument Registrar canceled or
for cancellation
(i) Have become due and payable, or
(ii) Will become due and payable at their Stated
Maturity within one year, or
(iii) Are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose money in an amount sufficient to
pay and discharge the entire indebtedness on such Instruments not
theretofore delivered to the Trustee or the Instrument Registrar
canceled or for cancellation, including the principal of (and
premium, if any) and any interest on such Instruments to the date
of such deposit (in the case of Instruments which have become due
and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) The Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Outstanding
Instruments of such series; and
(3) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture as to Instruments of such series have been complied
with.
In the event there are Instruments of two or more series
hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only (i) if
requested to do so with respect to Instruments of such series as to which it
is Trustee and (ii) if the other conditions thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to any series of Instruments, the obligations of the Company to
the Trustee under Section 607, the obligations of the Trustee to any
Authenticating Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of all sums due and to become
due with respect to Instruments for which such money has been deposited for
principal (and premium, if any) and any interest; but such money need not be
segregated from other funds except to the extent required by law.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default; Defaults.
(a) "Event of Default," wherever used herein, with respect to
Instruments of any series means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) The entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding-up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(2) The commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by the Company
to the entry of a decree or order for relief in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by
the Company of a petition or answer or consent seeking reorganization or
relief under any applicable federal or state law, or the consent by the
Company to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by the Company of an
assignment for the benefit of creditors, or the admission by the Company
in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company in furtherance of
any such action.
(b) "Default," wherever used herein, with respect to Instruments
of any series means any one of the following events (whatever the reason for
such Default and whether it shall be occasioned by the provisions of Article
Thirteen, or voluntary or involuntary, or effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) An Event of Default; or
(2) Default in the payment of any interest on any
Instrument of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(3) Default in the payment of the principal of (or premium, if
any, on) any Instrument of that series at its Maturity; or
(4) Default in the deposit of any sinking fund payment, when and
as due by the terms of an Instrument of that series; or
(5) Default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in the performance or the breach of which is
elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of a series of
Instruments other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Instruments of that series, a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(6) Any other Default provided pursuant to Section 301 with
respect to Instruments of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Instruments of any series
at the time Outstanding occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Instruments of that series may declare the principal (or, if the
Instruments of that series are Original Issue Discount Instruments, such
portion of the principal as may be specified in the terms of that series) of
all the Instruments of that series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal (or specified portion thereof) shall
become immediately due and payable. Upon payment of such amount, all
obligations of the Company in respect of the payment of principal of the
Instruments of such series shall terminate.
At any time after such a declaration of acceleration with respect
to Instruments of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of not less than a majority in principal
amount of the Outstanding Instruments of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) The Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) All overdue installments of interest on all
Instruments of that series,
(B) The principal of (and premium, if any, on) any
Instruments of that series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate
or rates borne by or provided for in such Instruments,
(C) To the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or
rates borne by or provided for in such Instruments, and
(D) All sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) All Defaults with respect to Instruments of that series,
other than the nonpayment of the principal of Instruments of that series
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of any written notice of declaration
of acceleration, or rescission and annulment thereof, with respect to
Instruments of a series all or part of which is represented by a Global
Instrument, from Holders of less than the requisite principal amount of
Outstanding Instruments of such series, the Trustee shall establish a record
date for determining Holders of Outstanding Instruments of such series
entitled to join in such written notice of declaration of acceleration, or
rescission and annulment, as the case may be, which record date shall be at
the close of business on the day the Trustee receives such written notice of
declaration of acceleration, or rescission and annulment, as the case may be.
The Holders on such record date, or their duly designated proxies, and only
such Persons, shall be entitled to join in such written notice of declaration
of acceleration, or rescission and annulment, as the case may be, whether or
not such Holders remain Holders after such record date; provided, however,
that unless such declaration of acceleration, or rescission and annulment, as
the case may be, shall have become effective by virtue of the
requisite percentage having been obtained prior to the day which is 90 days
after such record date, such written notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no effect. Nothing in this
paragraph shall prevent a Holder, or a proxy of a Holder, of Instruments of
any series from giving, (i) after expiration of such 90-day period, a new
written notice of declaration of acceleration, or rescission and annulment
thereof, as the case may be, that is identical to a written notice of
declaration of acceleration, or rescission and annulment thereof, which has
been canceled pursuant to the proviso to the preceding sentence, or
(ii) during any such 90-day period, an additional written notice of
declaration of acceleration with respect to any other Event of Default with
respect to Instruments of such series, or an additional written notice of
rescission and annulment of any declaration of acceleration with respect to
any other Event of Default with respect to Instruments of such series, in
either of which events a new record date shall be established pursuant to the
provisions of this Section 502 in respect of such new or additional written
notice of declaration of acceleration, or rescission and annulment, as the
case may be.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) Default is made in the payment of any installment of
interest on any Instrument of any series when such interest becomes due
and payable and such default continues for a period of 30 days, or
(2) Default is made in the payment of the principal of (or
premium, if any, on) any Instrument of any series at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of Instruments of such series, the whole amount then due and
payable on Instruments of such series for principal (and premium, if any) and
interest, with interest upon the overdue principal (and premium, if any) and,
to the extent that payment of such interest shall be legally enforceable, upon
overdue installments of interest, at the rate or rates borne by or provided
for in such Instruments; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Instruments
and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
the Instruments, wherever situated.
If a Default with respect to Instruments of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of the Instruments of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or such Instruments
or in aid of the exercise of any power granted herein or therein, or to
enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Instruments or the property of the Company or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the
Instruments shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of any overdue principal,
premium or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) To file and prove a claim for the whole amount of principal
(or with respect to Original Issue Discount Instruments, such portion of
the principal amount as may be specified in the terms of such
Instruments), and premium, if any, and any interest owing and unpaid in
respect of the Instruments and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) To collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Instruments or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for
the election of a trustee in bankruptcy or similar official and be a member of
a creditors' or similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Instruments.
All rights of action and claims under this Indenture or the
Instruments may be prosecuted and enforced by the Trustee without the
possession of any of the Instruments or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be, subject to Article Thirteen, for the ratable benefit of the
Holders of the Instruments in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Instruments and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 607;
SECOND: Subject to Article Thirteen, to the payment of the amounts
then due and unpaid for principal of (and premium, if any) and any
interest on the Instruments in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Instruments for principal (and premium, if any) and interest,
respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Instrument of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) Such Holder has previously given written notice to the
Trustee of a continuing Default with respect to Instruments of that
series;
(2) The Holders of not less than 25% in principal amount of the
Outstanding Instruments of that series shall have made written request
to the Trustee to institute proceedings in respect of such Default in
its own name as Trustee hereunder;
(3) Such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) The Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) No direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Instruments of that
series;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture or any Instrument to affect, disturb or prejudice the rights of
any other such Holders or Holders of Instruments of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or
to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Instrument shall have the right, which is absolute and unconditional,
to receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest, if any, on such Instrument on the respective Stated
Maturities specified in such Instrument (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
<PAGE>
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Instruments in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Instrument to exercise any right or remedy accruing upon any Default shall
impair any such right or remedy or constitute a waiver of any such Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Instruments of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Instruments of such series, provided that
(1) Such direction shall not be in conflict with any rule of
law, with this Indenture or with the Instruments of any such series,
(2) The Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) Such direction is not unduly prejudicial to the rights of
the other Holders of Instruments of such series not joining in such
action.
Upon receipt by the Trustee of any written notice directing the
time, method or place of conducting any such proceeding or exercising any such
trust or power, with respect to Instruments of a series all or part of which
is represented by a Global Instrument, and if such direction is from Holders
of less than a majority in principal amount of Outstanding Instruments of such
series, a record date shall be established for determining Holders of
Outstanding Instruments of such series entitled to join in such notice, which
record date shall be at the close of business on the day the Trustee receives
such notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice
whether or not such Holders remain Holders after such record date; provided,
however, that unless the Holders of a majority in principal amount of the
Outstanding Instruments of such series shall have joined in such notice prior
to the day which is 90 days after such record date, such notice shall
automatically and without further action by any Holder be canceled and of no
effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a
Holder, from giving, (i) after expiration of such 90-day period, a new notice
identical to a notice which has been canceled pursuant to the proviso to the
preceding sentence, or (ii) during any such 90-day period, a new direction
contrary to or otherwise different from such direction, in either of which
events a new record date shall be established pursuant to the provisions of
this Section 512 in respect of such new direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Instruments of any series may, on behalf of the Holders of all the
Instruments of such series, waive any past Default hereunder with respect to
such series and its consequences, except a Default
(1) In the payment of the principal of (or premium, if any) or
interest, if any, on any Instrument of such series, or
(2) In respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Instrument of such series affected.
The Company may, but shall not be obligated to, fix a record date
in accordance with the Trust Indenture Act for the purpose of determining the
Persons entitled to waive any past Default hereunder. If a record date is
fixed, the Holders on such record date, or their duly designated proxies, and
only such Persons, shall be entitled to waive any Default hereunder, whether
or not such Holders remain Holders after such record date; provided, however,
that unless such majority in principal amount shall have waived such Default
prior to the date which is 90 days after such record date, any such waiver
previously given shall automatically and without further action by any Holder
be canceled and of no effect.
Upon any such waiver, such Default shall cease to exist for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other Default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Instrument by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit, other than the Trustee, of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorney fees at trial and on appeal,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such.party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, the Trustee, or any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding Instruments of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Instrument
on or after the respective Stated Maturities specified in such Instrument (or,
in the case of redemption, on or after the Redemption Date).
SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a Default occurs hereunder with respect to Instruments of any
series, the Trustee shall give the Holders of Instruments of such series
notice of such default as and to the extent provided by the Trust Indenture
Act; provided, however, that in the case of any default of the character
specified in Section 501(b)(5) with respect to Instruments of such series, no
such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, a
Default with respect to Instruments of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order (in each
case, other than delivery of any Instrument to the Trustee for authentication
and delivery pursuant to Section 303, which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(d) The Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine, during business hours and upon reasonable
notice, the books, records and premises of the Company, personally or by agent
or attorney; and
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Instruments.
The recitals contained herein and in the Instruments, except in
the certificates of authentication, shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Instruments, except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Instruments and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility on
Form T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Company of the
Instruments or the proceeds thereof.
SECTION 605. May Hold Instruments.
The Trustee, any Paying Agent, any Authenticating Agent, any
Instrument Registrar or any other agent of the Trustee or the Company, in its
individual or any other capacity, may become the owner or pledgee of
Instruments and, subject to Sections 608 and 613, may otherwise deal with the
Company with the same rights it would have if it were not Trustee, Paying
Agent, Authenticating Agent, Instrument Registrar or such other agent.
SECTION 606. Money Held in Trust.
Except as provided in Section 1003, money held by the Trustee or
any Paying Agent in trust hereunder need not be segregated from other funds
except to the extent required by law. Neither the Trustee nor any Paying
Agent shall be under any liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) To pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) Except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel and any
Authenticating Agent), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) To indemnify the Trustee and its agents for, and to hold
them harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any
of their powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Instruments
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (and premium, if any) or
interest on Instruments. The obligations of the Company under this Section
shall survive the resignation or removal of the Trustee.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture. To
the extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Instruments of more than one series, or a trustee under the
Indenture relating to Senior Debt Instruments, dated as of _____________,
1996, between the Company and the Trustee.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder
with respect to the Instruments of each series, which may be Trustee hereunder
for Instruments of one or more other series. Each Trustee shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $20,000,000. If at any time the
Trustee with respect to the Instruments of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Instruments of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Instruments of such series.
(c) The Trustee may be removed at any time with respect to the
Instruments of any series by Act of the Holders of a majority in principal
amount of the Outstanding Instruments of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of an Instrument for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution
may remove the Trustee with respect to all Instruments or (ii) subject to
Section 514, any Holder who has been a bona fide Holder of an Instrument for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Instruments and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Instruments of one or more series, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Instruments of that or those series (it being
understood that any such successor Trustee may be appointed with respect to
the Instruments of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Instruments of any
particular series) and shall comply with the applicable requirements of
Section 611. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Instruments of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Instruments of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Instruments of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Instruments of any series shall have
been so appointed by the Company or the Holders of Instruments of such series
and accepted appointment in the manner required by Section 611, any Holder who
has been a bona fide Holder of an Instrument of such series for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Instruments of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Instruments of any series and each
appointment of a successor Trustee with respect to the Instruments of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Instruments of such series as their names and
addresses appear in the Instrument Register. Each notice shall include the
name of the successor Trustee with respect to the Instruments of such series
and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Instruments, such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Instruments of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Instruments of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Instruments of that or those series to which the appointment of
such successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Instruments, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Instruments of that or
those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and
that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Trustee; and, upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee shall, with
respect to the Instruments of that or those series to which the appointment of
such successor Trustee relates, have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture other than as
hereinafter set forth, and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Instruments of
that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Instruments of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Instruments shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Instruments so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Instruments.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Instruments), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Instruments remain Outstanding, the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Instruments which shall be authorized to act on behalf of the
Trustee to authenticate Instruments of that or those series issued upon
original issue, exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Instruments so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Instruments by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on
behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent.
Each such Authenticating Agent shall be acceptable to the Company
and shall at all times be a corporation that would be permitted by the Trust
Indenture Act to act as trustee under an indenture qualified under the Trust
Indenture Act, is authorized under applicable law and its charter to act as
Authenticating Agent and has a combined capital and surplus of at least
$10,000,000. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of any Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the execution or filing of
any paper or any further act on the part of the Trustee or the Authenticating
Agent.
Any Authenticating Agent may resign at any time by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time, terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time any Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which must be acceptable to the Company and shall mail
notice of such appointment to all Holders of Instruments of the series with
respect to which such Authenticating Agent will serve as the names and
addresses of such Holders appear in the Instrument Register. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder, shall
become vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The provisions of Sections 104, 308, 601, 603 and 604 shall also
be applicable to any Authenticating Agent.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, to
reimburse it for all reasonable expenses, disbursements and advances incurred
or made by it and to indemnify it for and hold it harmless against any loss,
liability or expense incurred hereunder to the same extent as the Company is
required to pay, reimburse or indemnify the Trustee under Section 607 and the
Trustee shall have no obligation with respect to such expenses, disbursements,
advances or indemnities.
If an appointment with respect to one or more series of
Instruments is made pursuant to this Section, the Instruments of such series
may have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication in
the following form:
This is one of the Instruments of the series
designated herein referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By __________________________
As Authenticating Agent
By __________________________
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company will furnish or cause to be furnished to the Trustee with respect to
the Instruments of each series (a) semi-annually, either (i) not later than
June 30 and December 31 in each year in the case of Instruments with Interest
Payment Dates occurring less often than once every six months and Original
Issue Discount Instruments which by their terms bear interest only after
Maturity, or (ii) not later than 15 days after each Regular Record Date in the
case of Instruments of any other series, if and so long as Instruments of such
series are Outstanding, and (b) at such other times as the Trustee may request
in writing, within 30 days after receipt by the Company of any such request, a
list in such form as the Trustee may reasonably require containing all the
information in the possession or control of the Company, or any of its Paying
Agents other than the Trustee, as to the names and addresses of the Holders of
such series; provided, however, that no such list need be furnished if the
Trustee shall be the Instrument Registrar. Any such list shall be dated as of
a date not more than 15 days prior to the time such information is furnished
or caused to be furnished and need not include information received after such
date; provided, however, that with respect to any list furnished pursuant to
subclause (a)(ii) above, any such list shall be dated as of the Regular Record
Date.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Instruments, and the
corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
Every Holder of Instruments, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Paying Agent nor any Instrument Registrar shall be held
accountable by reason of the disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act, regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a
request made under Section 312(b) of the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year, if required by
Section 313(a) of the Trust Indenture Act, the Trustee shall transmit,
pursuant to Section 313(c) of the Trust Indenture Act, a brief report dated as
of such May 15 with respect to any of the events specified in said
Section 313(a) which may have occurred since the later of the immediately
preceding May 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by
Section 313(b) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d) of the Trust
Indenture Act, as well as to the Company.
SECTION 704. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture
Act, shall:
(1) File with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the Company
is not required to file information, documents or reports pursuant to
either of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a
security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(2) File with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) Transmit to the Holders within 30 days after the filing
thereof with the Trustee, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, such summaries of any
information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, unless:
(1) The Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation organized and
validly existing under the laws of the United States of America, any
state thereof or the District of Columbia and shall expressly assume, by
an indenture (or indentures, if at such time there is more than one
Trustee) supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest, if any, on all the
Instruments and the performance or observance of every other covenant of
this Indenture on the part of the Company to be performed or observed;
(2) Immediately after giving effect to such transaction, no
Default, and no event which, after notice or lapse of time or both,
would become a Default, shall have happened and be continuing; and
(3) Either the Company or the successor corporation or Person
shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation or merger or any conveyance, transfer or
lease of the properties and assets of the Company substantially as an entirety
in accordance with Section 801, the successor corporation formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor corporation had been named as the Company
herein; and thereafter, except in the case of a lease, the predecessor Person
shall be released from all obligations and covenants under this Indenture and
the Instruments.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company (when authorized
by or pursuant to a Board Resolution) and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) To evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Instruments; or
(2) To add to the covenants of the Company for the benefit of
the Holders of all or any series of Instruments (and if such covenants
are to be for the benefit of less than all series of Instruments,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) To add any additional Defaults or Events of Default with
respect to all or any series of Instruments (as shall be specified in
such supplemental indenture); or
(4) To add to or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Instruments in bearer form, registrable or not registrable
as to principal, and with or without interest coupons; or
(5) To add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Instruments, provided that
any such addition, change or elimination (A) shall neither (i) apply to
any Instrument of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor
(ii) modify the rights of the Holder of any such Instrument with respect
to such provisions or (B) shall become effective only when there is no
such Instrument Outstanding; or
(6) To secure the Instruments; or
(7) To establish the form or terms of Instruments of
any series as permitted by Sections 201 and 301; or
(8) To evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Instruments of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611; or
(9) To cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided such action
shall not adversely affect the interests of the Holders of Instruments
of any series in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Instruments of each series affected by
such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company (when authorized by or pursuant to a Board
Resolution) and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Instruments of such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Instrument affected thereby,
(1) Change the Stated Maturity of the principal of, or any
premium or installment of interest on, any Instrument, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Instrument or any other Instrument that
would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502, or change the Place of Payment
where, or the coin or currency in which, any Instrument or any premium
or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or modify the provisions of this Indenture with
respect to the subordination of the Instruments in a manner adverse to
the Holders, or
(2) Reduce the percentage in principal amount of the Outstanding
Instruments of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain Defaults hereunder and their consequences) provided
for in this Indenture, or
(3) Modify any of the provisions of this Section, Section 513 or
Section 1007, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Instrument
affected thereby.
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 Instruments, or which
modifies the rights of the Holders of Instruments of such series with respect
to such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Instruments of any other series.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture, whether or not such
Holders remain Holders after such record date; provided, however, that unless
such consent shall have become effective by virtue of the requisite percentage
having been obtained prior to the date which is 90 days after such record
date, any such consent previously given shall automatically and without
further action by any Holder be canceled and of no effect.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of an Instrument theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Instruments to Supplemental Indentures.
Instruments of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Instruments of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Instruments of such series without charge to the Holders.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest, if any, on the Instruments of each series in
accordance with the terms of the Instruments of such series and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain an office or agency in each Place of
Payment for any series of Instruments where Instruments of that series may be
presented or surrendered for payment, where Instruments of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Instruments of that series
and this Indenture may be served. The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee and, effective at
that time, the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Instruments of one or more series may be
presented or surrendered for any or all the purposes specified above in this
Section, and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in each Place of
Payment for Instruments of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
SECTION 1003. Money for Instrument Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Instruments, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Instruments
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay such principal (and premium, if any)
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Instruments, it will, on or prior to each due date of the principal
of (and premium, if any) or interest on any Instruments of that series,
deposit with any Paying Agent for that series a sum sufficient to pay such
principal (and premium, if any) or interest so becoming due, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of
Instruments other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) Comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent; and
(2) At any time during the continuance of any default by the
Company (or any other obligor upon the Instruments of that series) in
the making of any payment of principal (and premium, if any) or interest
on the Instruments of that series, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such
Paying Agent in respect of the Instruments of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability
with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Instrument of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Instrument shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of
the Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company, mail to the Holders at their
addresses as set forth in the Instrument Register, or cause to be published
once, in a newspaper published in the English language, customarily published
on each Business Day and of general circulation at each Place of Payment with
respect to Instruments of such series, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication or mailing, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and material franchises;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 1005. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the Company or any
Subsidiary or upon the income, profits or property of the Company or any
Subsidiary, and (2) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
SECTION 1006. Statement as to Compliance.
Beginning in 199___, the Company will deliver to the Trustee,
within 120 days after the end of each fiscal year, a written statement (which
need not be contained in or accompanied by an Officers' Certificate) complying
with Section 314(a)(4) of the Trust Indenture Act.
SECTION 1007. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Instruments of such series, the Company may, with respect to the Instruments
of any series, omit in any particular instance to comply with any term,
provision, or condition set forth in any covenant provided pursuant to
Section 301(12), 901(2), or 901(7) for the benefit of the Holders of such
series or in Sections 1004 and 1005, if before or after the time for such
compliance the Holders of not less than a majority in principal amount of the
Instruments of such series at the time Outstanding shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision, or condition, but no such waiver shall
extend to or affect such term, provision, or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any
such term, provision, or condition shall remain in full force and effect.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to waive any such term,
provision, or condition. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to waive any such term, provision, or condition hereunder, whether or
not such Holders remain Holders after such record date; provided that unless
the Holders of a majority in principal amount of the Outstanding Instruments
of such series shall have waived such term, provision, or condition prior to
the date which is 90 days after such record date, any such waiver previously
given shall automatically and without further action by any Holder be canceled
and of no further effect.
ARTICLE ELEVEN
Redemption of Instruments
SECTION 1101. Applicability of Article.
Redemption of Instruments of any series at the election of the
Company as permitted or required by the terms of such Instruments shall be
made in accordance with the terms of such Instruments and (except as otherwise
specified as contemplated by Section 301 for Instruments of any series) in
accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Instruments shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Company of less than all the Instruments of any series
(including any such redemption affecting only a single Instrument), the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date, of the principal amount of Instruments of
such series to be redeemed, of the Redemption Price and, if applicable, of the
tenor of the Instruments to be redeemed. In the case of any redemption of
Instruments prior to the expiration of any restriction on such redemption
provided in the terms of such Instruments or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Instruments to Be Redeemed.
If less than all the Instruments of any series are to be redeemed
(unless all the Instruments of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Instrument), the
particular Instruments to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Instruments
of such series not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of a portion of the principal amount of any
Instrument of such series; provided that the unredeemed portion of the
principal amount of any Instrument shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such
Instrument. If less than all the Instruments of such series and of a
specified tenor are to be redeemed (unless such redemption affects only a
single Instrument), the particular Instruments to be redeemed shall be
selected not more than 60 days prior to the redemption date by the Trustee,
from the Outstanding Instruments of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
In any case where multiple Instruments of such series are registered in the
same name, the Trustee shall upon the direction of the Company treat the
aggregate principal amount so registered as if it were represented by one
Instrument of such series.
The Trustee shall promptly notify the Company and the Instrument
Registrar (if other than itself) in writing of the Instruments selected for
redemption and, in the case of any Instrument selected for partial redemption,
the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply
with respect to any redemption affecting only a single Instrument, whether
such Instrument is to be redeemed in whole or in part. In the case of any
such redemption in part, the unredeemed portion of the principal amount of the
Instrument shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Instrument.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Instruments shall
relate, in the case of any Instruments redeemed or to be redeemed only in
part, to the portion of the principal amount of such Instruments which has
been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Instruments to be redeemed,
to each Holder of Instruments to be redeemed.
All notices of redemption shall state:
(1) The Redemption Date,
(2) The Redemption Price,
(3) If less than all the Outstanding Instruments of
any series consisting of more than a single Instrument are to be
redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Instruments to be redeemed,
and, if less than all the Outstanding Instruments of any series
consisting of a single Instrument are to be redeemed, the principal
amount of the particular Instrument to be redeemed,
(4) That, on the Redemption Date, the Redemption Price will
become due and payable upon each such Instrument or portion thereof to
be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date,
(5) The place or places where each such Instrument is to be
surrendered for payment of the Redemption Price,
(6) That the redemption is for a sinking fund, if such is the
case, and
(7) The CUSIP number of the Instruments being redeemed.
Notice of redemption of Instruments to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit in
trust with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest, if
any, on, all the Instruments or portions thereof which are to be redeemed on
that date.
SECTION 1106. Instruments Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Instruments so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the Redemption Price
and accrued interest) such Instruments shall cease to bear interest. Upon
surrender of any such Instrument for redemption in accordance with said
notice, such Instrument shall be paid by the Company at the Redemption Price,
together with accrued interest, if any, to the Redemption Date; provided,
however, that, unless otherwise specified as contemplated by Section 301,
installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Instruments, or one or
more Predecessor Instruments, registered as such at the close of business on
the Regular Record Dates therefor according to their terms and the provisions
of Section 307.
If any Instrument called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate or rates
prescribed therefor in such Instrument.
SECTION 1107. Instruments Redeemed in Part.
Any Instrument which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company, the Trustee or the Instrument
Registrar so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company, the Trustee or the Instrument Registrar
duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Instrument without service charge, a new
Instrument or Instruments of the same series, of like tenor and of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Instrument so surrendered. If a Global Instrument is so surrendered, the
Company shall execute, and the Trustee shall authenticate and deliver to the
Depositary for such Global Instrument as shall be specified in the Company
Order with respect thereto, without service charge, a new Global Instrument in
a denomination equal to and in exchange for the unredeemed portion of the
principal of the Global Instrument so surrendered.
ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Instruments of any series except as otherwise
specified as contemplated by Section 301 for Instruments of such series.
The minimum amount of any sinking fund payment provided for by the
terms of the Instruments 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 Instruments of any series is herein referred to
as an "optional sinking fund payment." If provided for by the terms of
Instruments of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Instruments of any series as provided
for by the terms of Instruments of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Instruments.
The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Instruments of any series to be made pursuant
to the terms of such Instruments, (1) deliver Outstanding Instruments of such
series (other than any previously called for redemption) or (2) apply as a
credit (x) Instruments of such series which have been redeemed (or called for
redemption and for which the Redemption Price, together with accrued interest,
if any, has been deposited pursuant to Section 1105) either at the election of
the Company pursuant to the terms of such Instruments or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Instruments or (y) Instruments theretofore delivered by the Company to
the Trustee for cancellation which have been so canceled; provided that such
Instruments have not been previously so credited. Such Instruments shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Instruments for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Instruments for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
any series of Instruments, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Instruments of that series pursuant to Section 1202, and the optional amount,
if any, to be added in cash to the next ensuing mandatory sinking fund
payment, and will also deliver to the Trustee any Instruments to be credited
and not theretofore so delivered. If such Officers' Certificate shall specify
an optional amount be added to the next ensuing mandatory sinking fund
payment, the Company shall thereupon be obligated to pay the amount therein
specified. Not less than 45 days before each such sinking fund payment date,
the Trustee shall select the Instruments to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. The Company shall deposit the
amount of cash, if any, required for such sinking fund payment in the manner
provided in Section 1105. Such notice having been duly given, the redemption
of such Instruments shall be made upon the terms and in the manner stated in
Sections 1106 and 1107.
ARTICLE THIRTEEN
Subordination of Instruments
SECTION 1301. Agreement to Subordinate Instruments to Senior Indebtedness.
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of an Instrument likewise covenants and agrees by his
acceptance thereof, that anything in this Indenture or the Instruments to the
contrary notwithstanding, the payment in full of the principal of (and
premium, if any) and interest on each and all of the Instruments is hereby
expressly subordinated, to the extent and in the manner hereinafter set forth,
in right of payment to the prior payment in full of all Senior Indebtedness.
If the Company shall default in the payment of any principal of
(or premium, if any) or interest on any Senior Indebtedness when the same
becomes due and payable, whether at maturity or at a date fixed for prepayment
or by declaration of acceleration or otherwise, or, if any event of default
with respect to any Senior Indebtedness shall have occurred and be continuing,
or would occur as a result of the payment referred to herein, then, upon
written notice of such default or event of default to the Company by the
holder or holders of such Senior Indebtedness or any trustee therefor, unless
and until such default or event of default shall have been cured or waived or
shall have ceased to exist, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) shall be made or agreed to be made by the
Company on account of the principal of (or premium, if any) or interest on any
of the Instruments, or in respect of any redemption, retirement, purchase or
other acquisition of any of the Instruments, or as a sinking fund for the
Instruments (except sinking fund payments made in Instruments properly
acquired before such default or event of default and notice thereof).
In the event of any insolvency, bankruptcy, receivership,
conservatorship, reorganization, readjustment of debt, assignment for the
benefit of creditors, marshaling of assets and liabilities or similar
proceedings relating to, or any liquidation, dissolution or winding-up of, the
Company as a whole, whether voluntary or involuntary,
(1) The holders of all Senior Indebtedness shall first be
entitled to receive payment in full of the principal thereof (and premium, if
any) and interest due thereon (including any interest thereon accruing after
the commencement of any such proceedings), or provision shall be made for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to
the holders of Senior Indebtedness, before any payment shall be made on
account of the principal of (or premium, if any) or interest on the
indebtedness evidenced by the Instruments; and
(2) Any payment by, or distribution of assets of, the Company of
any kind or character, whether in cash, property or securities, to which the
Holders of the Instruments or the Trustee would be entitled except for the
provisions of this Article shall be paid or delivered by the person making
such payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of
such Senior Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Senior Indebtedness held
or represented by each, to the extent necessary to make payment in full of all
Senior Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution (or provision therefor) to the holders of such Senior
Indebtedness.
Notwithstanding the foregoing, in the event of any such
proceeding, if any payment by, or distribution of assets of, the Company of
any kind or character, whether in cash, property or securities (other than
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is subordinate, at least
to the extent provided in this Article with respect to the indebtedness
evidenced by the Instruments, to the payment of all Senior Indebtedness at the
time outstanding and to any securities issued in respect thereof under any
such plan of reorganization or readjustment), including any such payment or
distribution which may be payable or deliverable by reason of the payment of
any other indebtedness of the Company being subordinated to the payment of the
Instruments, shall be received by the Trustee or the Holders before all Senior
Indebtedness is paid in full, such payment or distribution shall be held (in
trust if received by such Holders) for the benefit of, and shall be paid over
to, the holders of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Indebtedness may have been
issued, ratably, for application to the payment of all Senior Indebtedness
remaining unpaid until all such Senior Indebtedness shall have been paid in
full, after giving effect to any concurrent payment or distribution (or
provision therefor) to the holders of such Senior Indebtedness; provided that
if the payment or delivery of such cash, property or securities to the Holders
of the Instruments is authorized by an order or decree giving effect, and
stating in such order or decree that effect is given, to the subordination of
the Instruments to the Senior Indebtedness, and made by a court of competent
jurisdiction in a reorganization proceeding under any applicable bankruptcy or
reorganization law, no payment or delivery of such cash, property or
securities payable or deliverable with respect to the Instruments shall be
made to the holders of Senior Indebtedness.
Nothing contained in this Article or elsewhere in this Indenture
or in the Instruments is intended to or shall impair, as between the Company,
its creditors other than the holders of Senior Indebtedness, and the Holders
of the Instruments, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Instruments the principal of (and
premium, if any) and interest on the Instruments as and when the same shall
become due and payable in accordance with their terms, or to affect the
relative rights of the Holders of the Instruments and creditors of the Company
other than the holders of the Senior Indebtedness, nor shall anything herein
or in the Instruments prevent the Trustee or the Holder of any Instrument from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness in respect of cash, property or securities of
the Company received upon the exercise of any such remedy.
The Company shall give prompt written notice to the Trustee of any
insolvency, bankruptcy, receivership, conservatorship, reorganization,
readjustment of debt, assignment for the benefit of creditors, marshaling of
assets and liabilities or similar proceedings or any liquidation, dissolution
or winding-up of or relating to the Company as a whole, whether voluntary or
involuntary, or of any default or event of default with respect to any Senior
Indebtedness that would prevent the Trustee from making any payment in respect
of the Instruments under this Section. The Trustee shall be entitled to
assume that, and may act as if, no such event has occurred unless the Trustee
has received the written notice provided for in Section 1304. Upon any
payment or distribution of assets of the Company referred to in this Article,
the Trustee and Holders of the Instruments shall be entitled to rely upon any
order or decree of a court of competent jurisdiction in which any proceedings
of the nature referred to in the first sentence of this paragraph are pending,
and the Trustee, subject to Section 315(a) of the Trust Indenture Act, and the
Holders of the Instruments shall be entitled to rely upon a certificate of the
liquidating trustee or agent or other person making any distribution to the
Trustee or to the Holders of the Instruments, for the purpose of ascertaining
the Persons entitled to participate in such payment or distribution, the
holders of the Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon, and all other facts pertinent thereto or to this Article. In the
absence of any such liquidating trustee, agent or other person, the Trustee
shall be entitled to rely upon a written notice by a Person representing
himself to be a holder of Senior Indebtedness (or a trustee or representative
on behalf of such holder) as evidence that such Person is a holder of such
Senior Indebtedness (or is such a trustee or representative). In the event
that the Trustee determines in good faith that further evidence is required
with respect to the right of any Person, as a holder of Senior Indebtedness,
to participate in any payment or distribution pursuant to this Section, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held
by such Person, as to the extent to which such Person is entitled to
participate in such payment or distribution, and as to other facts pertinent
to the rights of such Person under this Section, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 1302. Payment Permitted if No Default.
Nothing contained in this Article or elsewhere in this Indenture,
or in any of the Instruments, shall (a) affect the obligation of the Company
to make, or prevent the Company from making, at any time except during the
pendency of any liquidation, dissolution, winding-up or insolvency or similar
proceedings referred to in, or under the conditions described in,
Section 1301, payments of the principal of (or premium, if any) or interest on
the Instruments or of amounts to be available as a sinking fund for the
Instruments, or (b) prevent the application by the Trustee of any money
deposited with it hereunder to payments of the principal of (or premium, if
any) or interest on the Instruments if, at the time of such deposit, the
Trustee did not have the written notice provided for in Section 1304 of any
event prohibiting the making of such deposit by the Company, and the Trustee
shall not be affected by any notice to the contrary received by it on or after
such date.
SECTION 1303. Limitations on Duties to Holders of Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness.
SECTION 1304. Notice to Trustee of Facts Prohibiting Payments.
Notwithstanding any of the provisions of this Article or any other
provisions of this Indenture, but subject to Section 315(a) of the Trust
Indenture Act, the Trustee shall not at any time be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to
or by the Trustee, or the taking of any other action by the Trustee, unless
and until a Responsible Officer of the Trustee shall have received at the
Corporate Trust Office of the Trustee written notice thereof from the Company,
any Holder, or from any holder of Senior Indebtedness or any trustee therefor
or representative thereof (who shall have been certified by the Company or
otherwise established to the reasonable satisfaction of the Trustee to be such
a holder, trustee or representative); and, prior to the receipt of any such
written notice, the Trustee shall be entitled in all respects to assume that
no such facts exist.
SECTION 1305. Application by Trustee of Moneys Deposited with It.
Anything in this Indenture to the contrary notwithstanding, any
deposit of money by the Company with the Trustee or any agent (whether or not
in trust) for any payment of the principal of (or premium, if any) or interest
on any Instruments shall, except as provided in Section 1304, be subject to
the provisions of Section 1301.
SECTION 1306. Subrogation.
Subject to the payment in full of all Senior Indebtedness, or the
provision for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Indebtedness, the Holders of the
Instruments shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of assets of the Company
applicable to such Senior Indebtedness until the Instruments shall be paid in
full, and none of the payments or distributions to the holders of such Senior
Indebtedness to which the Holders of the Instruments or the Trustee would be
entitled except for the provisions of this Article or of payments over,
pursuant to the provisions of this Article, to the holders of such Senior
Indebtedness by the Holders of the Instruments or the Trustee shall, as
between the Company, its creditors other than the holders of such Senior
Indebtedness, and the Holders of the Instruments, be deemed to be a payment by
the Company to or on account of such Senior Indebtedness, it being understood
that the provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Instruments, on
the one hand, and the holders of the Senior Indebtedness, on the other hand.
SECTION 1307. Subordination Rights Not Impaired by Acts or Omissions of
Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior
Indebtedness to enforce subordination as herein provided shall at any time or
in any way be prejudiced or impaired by any act or failure to act on the part
of the Company or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Company with the terms, provisions, and
covenants of this Indenture, regardless of any knowledge thereof which any
such holder may have or with which such holder may otherwise be charged. The
holders of Senior Indebtedness may, at any time or from time to time and in
their absolute discretion, change the manner, place or terms of payment,
change or extend the time of payment of, or renew or alter, any such Senior
Indebtedness, or amend or supplement any instrument pursuant to which any such
Senior Indebtedness is issued or by which it may be secured, or release any
security therefor, or exercise or refrain from exercising any other of their
rights under the Senior Indebtedness including, without limitation, the waiver
of default thereunder, all without notice to or assent from the holders of the
Instruments or the Trustee and without affecting the obligations of the
Company, the Trustee or the Holders of the Instruments under this Article.
SECTION 1308. Authorization of Trustee to Effectuate Subordination of
Instruments.
Each Holder of an Instrument, by his acceptance thereof,
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate, as between the Holders of
the Instruments and the holders of Senior Indebtedness, the subordination
provided in this Article and appoints the Trustee his attorney-in-fact for any
and all such purposes.
SECTION 1309. Rights of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in
this Article in respect of any Senior Indebtedness at any time held by it in
its individual capacity to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
SECTION 1310. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if the
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Sections 1302(b), 1304 and 1309 shall not
apply to the Company or any Affiliate of the Company if the Company or such
Affiliate acts as Paying Agent.
* * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
U. S. BANCORP
By THOMAS P. DUCHARME
Executive Vice President
[SEAL]
Attest: SHERYL W. DAWSON
Assistant Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By
[SEAL]
Attest:
<PAGE>
STATE OF OREGON )
) ss
COUNTY OF MULTNOMAH )
On this ____ day of ________, 1996, before me, a Notary Public in
and for said County and State, personally appeared the within named THOMAS P.
DUCHARME and SHERYL W. DAWSON, to me known, who being first duly and severally
sworn did say that he, said THOMAS P. DUCHARME, is Executive Vice President,
and that she, said SHERYL W. DAWSON, is Assistant Secretary of U. S. BANCORP,
one of the corporations hereinbefore named; that the seal affixed to the
foregoing instrument is the seal of said corporation; and that said instrument
was signed and sealed in behalf of said corporation by authority of its Board
of Directors.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the date first hereinabove written.
[SEAL] Notary Public for Oregon
My Commission Expires:
STATE OF NEW YORK )
) ss
COUNTY OF NEW YORK )
On this _____ day of ____________, 1996, before me, a Notary
Public in and for said County and State, personally appeared the within named
________________ and _______________ to me known, who being first duly and
severally sworn did say that he, said ________________, is _______________,
and that he, said _______________, is ________________ of THE FIRST NATIONAL
BANK OF CHICAGO, one of the corporations hereinbefore named; that the seal
affixed to the foregoing instrument is the seal of said corporation; and that
said instrument was signed and sealed in behalf of said corporation by
authority of its Board of Directors.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the date first hereinabove written.
[SEAL] NOTARY PUBLIC, State of New York
No.
Qualified in _____________ County
Certificate Filed in New York County
Commission expires _____________
<PAGE>
Exhibit 4.3
Form of Senior Security
[Face of Instrument]
[Insert any legend required by the Internal Revenue Code and the regulations
thereunder.]
U. S. BANCORP
[Title of Instrument]
No. ___ $_________
U. S. Bancorp, an Oregon corporation (herein called the "Company,"
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to _____________, or
registered assigns, the principal sum of ________ Dollars on _____________.
[If the Instrument is to bear interest at a fixed rate prior to Maturity,
insert: , and to pay interest thereon from _____________ or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on _____________ and _____________ in each year commencing
_____________, 19__, at the rate of __ percent per annum, until the principal
hereof is paid or made available for payment.]
[If the Instrument is to bear interest at an adjustable rate prior to
Maturity, insert: , and to pay interest thereon from _____________ or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, at a rate determined as provided below, on _____________ and
_____________ in each year commencing _____________, 19__, until the principal
hereof is paid or made available for payment.]
[If applicable, insert: and to the extent that payment of such
interest shall be legally enforceable, at [said rate] [the rate of __ percent
per annum] on any overdue principal and premium and on any overdue
installments of interest.]
[If applicable, insert provisions applicable to calculation of
adjustable rate and the giving of notice with respect to such rate.]
The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in said Indenture, be paid to
the Person in whose name this Instrument (or one or more Predecessor
Instruments) is registered at the close of business on the Regular Record Date
for such interest, which shall be on the ____ or ____ (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either
be paid to the Person in whose name this Instrument (or one or more
Predecessor Instruments) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Instruments of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Instruments of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
[If the Instrument is not to bear interest prior to Maturity,
insert: The principal of this Instrument shall not bear interest except in
the case of a default in payment of principal upon acceleration, upon
redemption or at Stated Maturity and in such case the overdue principal and
any overdue premium shall bear interest at the rate of __ percent per annum
(to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such default in payment to
the date payment of such amounts has been made or duly provided for. Interest
on any overdue principal or premium shall be payable on demand. [Any such
interest on overdue principal or premium which is not paid on demand shall
bear interest at the rate of __ percent per annum (to the extent that the
payment of such interest on interest shall be legally enforceable), from the
date of such demand until the amount so demanded is paid or made available for
payment. Interest on any overdue interest shall be payable on demand.]]
Payment of the principal of (and premium, if any) and [any such]
interest on this Instrument will be made at the office or agency of the
Company maintained for that purpose in _____________, in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts [if applicable, insert: ; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address
shall appear in the Instrument Register.]
Reference is hereby made to the further provisions of this
Instrument set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been manually
executed by the Trustee [or the Authenticating Agent] referred to on the
reverse hereof, this Instrument shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Instrument to be
duly executed under its corporate seal.
Dated: U. S. BANCORP
Attest:
__________________________ By__________________________
Secretary Chairman of the Board
By__________________________
President
[Form of Certificate of Authentication.]
This is one of the Instruments of the series designated herein
issued under the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF
CHICAGO
as Trustee
[By__________________________
as Authenticating Agent]
By__________________________
Authorized Officer
<PAGE>
[Form of Reverse of Instrument.]
U. S. BANCORP
This Instrument is one of a duly authorized issue of debt
securities of the Company (herein called the "Instruments"), issued and to be
issued in one or more series under an Indenture, dated as of _____________,
1996 (the "Indenture"), between the Company and The First National Bank of
Chicago, as Trustee (the "Trustee," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Instruments and of the terms upon which the
Instruments are, and are to be, authenticated and delivered. This Instrument
is one of the series designated on the face hereof (herein called the
"Series") [, limited in aggregate principal amount to $________]. [If
applicable, insert: The Instruments of the Series may bear different dates
and mature at different times, may bear interest at different rates and may
otherwise vary, all as provided in the Indenture.]
[If applicable, insert: The Instruments of the Series are subject
to redemption upon not less than 30 days' notice provided in the manner set
forth in the Indenture [(1) on _____________ in any year commencing with the
year ____ and ending with the year ____ through operation of the sinking fund
for the Instruments of the Series at a Redemption Price equal to 100 percent
of the principal amount, and (2)] at any time [on or after _____________,
19__], as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount): If
redeemed [on or before _____________, 19__, __ percent, and if redeemed]
during the 12-month period beginning _____________ of the years indicated,
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
and thereafter at a Redemption Price equal to __ percent of the principal
amount, together in the case of any such redemption [(whether through
operation of the sinking fund or otherwise)] with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Instruments of the Series, or one or more Predecessor Instruments of the
Series, of record at the close of business on the relevant record dates
referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert: The Instruments of the Series are subject
to redemption upon not less than 30 days' notice provided in the manner set
forth in the Indenture, (1) on _____________ in any year commencing with the
year ____ and ending with the year ____ through operation of the sinking fund
for the Instruments of the Series at the Redemption Prices for redemption
through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below, and (2) at any time [on or
after ____], as a whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in
the table below: If redeemed during the 12-month period beginning
_____________ of the years indicated,
<PAGE>
Redemption Price Redemption Price for
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
---- ------------------- ----------------------
and thereafter at a Redemption Price equal to __ percent of the principal
amount, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the Redemption
Date, but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Instruments of the
Series, or one or more Predecessor Instruments of the Series, of record at the
close of business on the relevant record dates referred to on the face hereof,
all as provided in the Indenture.]
[If there is to be a sinking fund, insert: The sinking fund for
the Instruments of the Series provides for the redemption on ____ in each year
beginning with the year ____ and ending with the year ____ of [not less than]
$________ [("mandatory sinking fund") and not more than $________] aggregate
principal amount of Instruments of the Series. Instruments of the Series
acquired or redeemed by the Company otherwise than through [mandatory] sinking
fund payments may be credited against subsequent [mandatory] sinking fund
payments otherwise required to be made, all as provided in the Indenture.]
[If the Instrument is to be redeemable in part, insert: In the
event of redemption of this Instrument in part only, a new Instrument or
Instruments of the Series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Instrument is not to be subject to redemption at the option
of the Company, insert: The Instruments of the Series are not redeemable at
the option of the Company prior to Maturity.]
[If applicable, insert additional provisions regarding adjustable
rate Instruments and/or other terms relating to Instruments of a particular
series.]
[If the Instrument is not to be an Original Issue Discount
Instrument, insert: If an Event of Default with respect to Instruments of the
Series shall occur and be continuing, the principal of all Instruments of the
Series may be declared due and payable in the manner and with the effect
provided in the Indenture.]
[If the Instrument is to be an Original Issue Discount Instrument,
insert: If an Event of Default with respect to Instruments of the Series
shall occur and be continuing, an amount of principal of the Instruments of
the Series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to [insert formula for
determining the amount]. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal,
premium and interest (in each case to the extent that the payment of such
interest shall be legally enforceable), all of the Company's obligations in
respect of the payment of the principal of and interest, if any, on the
Instruments of the Series shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Instruments of each series
under the Indenture to be affected at any time by the Company and the Trustee
with the consent of the Holders of not less than a majority in principal
amount of the Instruments at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting the Holders of
not less than a majority in principal amount of the Instruments of each series
at the time Outstanding, on behalf of the Holders of all Instruments 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 Instrument
shall be conclusive and binding upon such Holder and upon all future Holders
of this Instrument and of any Instrument 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 Instrument.
As provided in and subject to the provisions of the Indenture, the
Holder of this Instrument shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with respect
to the Instruments of the Series, the Holders of not less than 25 percent in
principal amount of the Instruments of the Series at the time Outstanding
shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the Trustee reasonable
indemnity, and the Trustee shall not have received from the Holders of a
majority in principal amount of Instruments of the Series at the time
Outstanding a direction inconsistent with such request, and shall have failed
to institute any such proceeding, for 60 days after receipt of such notice,
request and offer of indemnity. The foregoing shall not apply to any suit
instituted by the Holder of this Instrument for the enforcement of any payment
of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Instrument or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) [and interest on] this Instrument at the times, place and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Instrument is registrable in the
Instrument Register, upon surrender of this Instrument for registration of
transfer at the office or agency of the Company maintained for that purpose,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Instrument Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Instruments of the Series of like tenor, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Instruments of the Series are issuable only in registered form
without coupons in denominations of $____ and any amount in excess thereof
which is an integral multiple of $____. As provided in the Indenture and
subject to certain limitations therein set forth, Instruments of the Series
are exchangeable for a like aggregate principal amount of other Instruments of
the Series and of like tenor and of any authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Instrument 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 Instrument is registered as the owner
hereof for all purposes, whether or not this Instrument be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
All terms used in this Instrument which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
<PAGE>
Exhibit 4.4
Form of Subordinated Security
[Face of Instrument]
[Insert any legend required by the Internal Revenue Code and the regulations
thereunder.]
U. S. BANCORP
[Title of Instrument]
No. ___ $_________
U. S. Bancorp, an Oregon corporation (herein called the "Company,"
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to _____________, or
registered assigns, the principal sum of ________ Dollars on _____________.
[If the Instrument is to bear interest at a fixed rate prior to Maturity,
insert: , and to pay interest thereon from _____________ or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on _____________ and _____________ in each year commencing
_____________, 19__, at the rate of __ percent per annum, until the principal
hereof is paid or made available for payment.]
[If the Instrument is to bear interest at an adjustable rate prior to
Maturity, insert: , and to pay interest thereon from _____________ or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, at a rate determined as provided below, on _____________ and
_____________ in each year commencing _____________, 19__, until the principal
hereof is paid or made available for payment.]
[If applicable, insert: and to the extent that payment of such
interest shall be legally enforceable, at [said rate] [the rate of __ percent
per annum] on any overdue principal and premium and on any overdue
installments of interest.]
[If applicable, insert provisions applicable to calculation of
adjustable rate and the giving of notice with respect to such rate.]
The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in said Indenture, be paid to
the Person in whose name this Instrument (or one or more Predecessor
Instruments) is registered at the close of business on the Regular Record Date
for such interest, which shall be on the ____ or ____ (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either
be paid to the Person in whose name this Instrument (or one or more
Predecessor Instruments) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Instruments of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Instruments of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
[If the Instrument is not to bear interest prior to Maturity,
insert: The principal of this Instrument shall not bear interest except in
the case of a default in payment of principal upon acceleration, upon
redemption or at Stated Maturity and in such case the overdue principal and
any overdue premium shall bear interest at the rate of __ percent per annum
(to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such default in payment to
the date payment of such amounts has been made or duly provided for. Interest
on any overdue principal or premium shall be payable on demand. [Any such
interest on overdue principal or premium which is not paid on demand shall
bear interest at the rate of __ percent per annum (to the extent that the
payment of such interest on interest shall be legally enforceable), from the
date of such demand until the amount so demanded is paid or made available for
payment. Interest on any overdue interest shall be payable on demand.]]
Payment of the principal of (and premium, if any) and [any such]
interest on this Instrument will be made at the office or agency of the
Company maintained for that purpose in _____________, in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts [if applicable, insert: ; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address
shall appear in the Instrument Register.]
Reference is hereby made to the further provisions of this
Instrument set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been manually
executed by the Trustee [or the Authenticating Agent] referred to on the
reverse hereof, this Instrument shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Instrument to be
duly executed under its corporate seal.
Dated: U. S. BANCORP
Attest:
__________________________ By__________________________
Secretary Chairman of the Board
By__________________________
President
[Form of Certificate of Authentication.]
This is one of the Instruments of the series designated herein
issued under the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF
CHICAGO
as Trustee
[By__________________________
as Authenticating Agent]
By__________________________
Authorized Officer
<PAGE>
[Form of Reverse of Instrument.]
U. S. BANCORP
This Instrument is one of a duly authorized issue of debt
securities of the Company (herein called the "Instruments"), issued and to be
issued in one or more series under an Indenture, dated as of _____________,
1996 (the "Indenture"), between the Company and The First National Bank of
Chicago, as Trustee (the "Trustee," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Instruments and of the terms upon which the
Instruments are, and are to be, authenticated and delivered. This Instrument
is one of the series designated on the face hereof (herein called the
"Series") [, limited in aggregate principal amount to $________]. [If
applicable, insert: The Instruments of the Series may bear different dates
and mature at different times, may bear interest at different rates and may
otherwise vary, all as provided in the Indenture.]
[If applicable, insert: The Instruments of the Series are subject
to redemption upon not less than 30 days' notice provided in the manner set
forth in the Indenture [(1) on _____________ in any year commencing with the
year ____ and ending with the year ____ through operation of the sinking fund
for the Instruments of the Series at a Redemption Price equal to 100 percent
of the principal amount, and (2)] at any time [on or after _____________,
19__], as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount): If
redeemed [on or before _____________, 19__, __ percent, and if redeemed]
during the 12-month period beginning _____________ of the years indicated,
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
and thereafter at a Redemption Price equal to __ percent of the principal
amount, together in the case of any such redemption [(whether through
operation of the sinking fund or otherwise)] with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Instruments of the Series, or one or more Predecessor Instruments of the
Series, of record at the close of business on the relevant record dates
referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert: The Instruments of the Series are subject
to redemption upon not less than 30 days' notice provided in the manner set
forth in the Indenture, (1) on _____________ in any year commencing with the
year ____ and ending with the year ____ through operation of the sinking fund
for the Instruments of the Series at the Redemption Prices for redemption
through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below, and (2) at any time [on or
after ____], as a whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in
the table below: If redeemed during the 12-month period beginning
_____________ of the years indicated,
<PAGE>
Redemption Price Redemption Price for
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
---- ------------------- ----------------------
and thereafter at a Redemption Price equal to __ percent of the principal
amount, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the Redemption
Date, but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Instruments of the
Series, or one or more Predecessor Instruments of the Series, of record at the
close of business on the relevant record dates referred to on the face hereof,
all as provided in the Indenture.]
[If there is to be a sinking fund, insert: The sinking fund for
the Instruments of the Series provides for the redemption on ____ in each year
beginning with the year ____ and ending with the year ____ of [not less than]
$________ [("mandatory sinking fund") and not more than $________] aggregate
principal amount of Instruments of the Series. Instruments of the Series
acquired or redeemed by the Company otherwise than through [mandatory] sinking
fund payments may be credited against subsequent [mandatory] sinking fund
payments otherwise required to be made, all as provided in the Indenture.]
[If the Instrument is to be redeemable in part, insert: In the
event of redemption of this Instrument in part only, a new Instrument or
Instruments of the Series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Instrument is not to be subject to redemption at the option
of the Company, insert: The Instruments of the Series are not redeemable at
the option of the Company prior to Maturity.]
[If applicable, insert additional provisions regarding adjustable
rate Instruments and/or other terms relating to Instruments of a particular
series.]
[If the Instrument is not to be an Original Issue Discount
Instrument, insert: If an Event of Default with respect to Instruments of the
Series shall occur and be continuing, the principal of all Instruments of the
Series may be declared due and payable in the manner and with the effect
provided in the Indenture.]
[If the Instrument is to be an Original Issue Discount Instrument,
insert: If an Event of Default with respect to Instruments of the Series
shall occur and be continuing, an amount of principal of the Instruments of
the Series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to [insert formula for
determining the amount]. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal,
premium and interest (in each case to the extent that the payment of such
interest shall be legally enforceable), all of the Company's obligations in
respect of the payment of the principal of and interest, if any, on the
Instruments of the Series shall terminate.]
The indebtedness evidenced by this Instrument is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness (as defined in the
Indenture), and this Instrument is issued subject to the provisions of the
Indenture with respect thereto. Each Holder of this Instrument, by accepting
the same, (a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee on his behalf to take such action as may be necessary
or appropriate to effectuate the subordination so provided and (c) appoints
the Trustee his attorney-in-fact for any and all such purposes. Each Holder
hereof, by his acceptance hereof, waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon such provisions.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Instruments of each series
under the Indenture to be affected at any time by the Company and the Trustee
with the consent of the Holders of not less than a majority in principal
amount of the Instruments at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting the Holders of
not less than a majority in principal amount of the Instruments of each series
at the time Outstanding, on behalf of the Holders of all Instruments 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 Instrument
shall be conclusive and binding upon such Holder and upon all future Holders
of this Instrument and of any Instrument 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 Instrument.
As provided in and subject to the provisions of the Indenture, the
Holder of this Instrument shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Default with respect to the
Instruments of the Series, the Holders of not less than 25 percent in
principal amount of the Instruments of the Series at the time Outstanding
shall have made written request to the Trustee to institute proceedings in
respect of such Default as Trustee and offered the Trustee reasonable
indemnity, and the Trustee shall not have received from the Holders of a
majority in principal amount of Instruments of the Series at the time
Outstanding a direction inconsistent with such request, and shall have failed
to institute any such proceeding, for 60 days after receipt of such notice,
request and offer of indemnity. The foregoing shall not apply to any suit
instituted by the Holder of this Instrument for the enforcement of any payment
of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Instrument or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) [and interest on] this Instrument at the times, place and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Instrument is registrable in the
Instrument Register, upon surrender of this Instrument for registration of
transfer at the office or agency of the Company maintained for that purpose,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Instrument Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Instruments of the Series of like tenor, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Instruments of the Series are issuable only in registered form
without coupons in denominations of $____ and any amount in excess thereof
which is an integral multiple of $____. As provided in the Indenture and
subject to certain limitations therein set forth, Instruments of the Series
are exchangeable for a like aggregate principal amount of other Instruments of
the Series and of like tenor and of any authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Instrument 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 Instrument is registered as the owner
hereof for all purposes, whether or not this Instrument be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
All terms used in this Instrument which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
<PAGE>
Exhibit 5
MILLER, NASH, WIENER, HAGER & CARLSEN LLP
ATTORNEYS AND COUNSELORS AT LAW
3500 U. S. BANCORP TOWER
111 S.W. FIFTH AVENUE
PORTLAND, OREGON 97204-3699
TELEPHONE (503) 224-5858
FACSIMILE (503) 224-0155
September 25, 1996
U. S. Bancorp
111 S.W. Fifth Avenue
Portland, Oregon 97204
Subject: Registration Statement on Form S-3
Shelf Registration of $1,000,000,000 in Principal
Amount of Debt Securities
Gentlemen:
Reference is made to the Registration Statement on Form S-3 (the
"Registration Statement") to be filed by U. S. Bancorp, an Oregon corporation
(the "Company"), with the Securities and Exchange Commission for the purpose
of registering under the Securities Act of 1933 (the "Act") debt securities of
the Company in the aggregate principal amount of $1,000,000,000 (the "Debt
Securities"), which may be either senior debt securities to be issued under an
indenture governing such securities between the Company and The First National
Bank of Chicago, as trustee, or subordinated debt securities to be issued
under an indenture governing such securities between the Company and The First
National Bank of Chicago, as trustee (together, the "Indentures"). The Debt
Securities may be offered and sold from time to time as set forth in the
prospectus (the "Prospectus") included in the Registration Statement and in
supplements to the Prospectus.
As counsel for the Company, we are familiar with the actions taken
by the Company with respect to the authorization of issuance of the Debt
Securities and execution and delivery of the Indentures. We have examined the
Registration Statement, the forms of the Indentures included as exhibits to
the Registration Statement, and originals or copies, certified or otherwise
identified to our satisfaction, of such corporate records, certificates, and
other documents as we have deemed necessary or relevant as a basis for the
opinion set forth herein.
Based on the foregoing, it is our opinion that:
1. The Company is a corporation duly organized and validly
existing under the laws of the state of Oregon with corporate
power and authority under such laws to issue the Debt Securities.
2. Each of the Indentures, when duly executed and delivered
by the Company in substantially the form included as an exhibit to
the Registration Statement, and qualified under the
Trust Indenture Act of 1939, as amended, will constitute a legal,
valid, and binding indenture of the Company.
3. When (i) the issuance of a series of the Debt Securities
has been duly authorized by appropriate corporate action, (ii) the
Debt Securities of such series have been duly executed,
authenticated, and delivered in accordance with the Indenture
governing the Debt Securities of such series, and (iii) the Debt
Securities of such series have been sold as described in the
Registration Statement, the Prospectus, and supplements to the
Prospectus, and payment is received therefor, while the
Registration Statement is effective and in compliance with state
securities laws, the Debt Securities of such series will
constitute legal, valid, and binding obligations of the Company
entitled to the benefits of the Indenture governing the Debt
Securities of such series.
This opinion is based upon the laws of the United States and the
state of Oregon at the date hereof and would not necessarily be the same at
any subsequent date.
We consent to the use of this opinion in the Registration
Statement and in any amendments thereto and to the reference to us under the
caption "Validity of Offered Debt Securities" therein. In giving this
consent, we do not thereby admit that we come within the category of persons
whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission thereunder.
Very truly yours,
MILLER, NASH, WIENER, HAGER & CARLSEN LLP
<PAGE>
DELOITTE & TOUCHE LLP
Suite 3900 Telephone: (503) 222-1341
111 S.W. Fifth Avenue Facsimile: (503) 224-2172
Portland, Oregon 97204-3698
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration statement of
U. S. Bancorp on Form S-3 of our report dated January 30, 1996 (February 11,
1996 as to the final paragraph of Note 2), appearing in the Annual Report on
Form 10-K of U. S. Bancorp for the year ended December 31, 1995 and to the
reference to us under the heading "Experts" in the Prospectus which is part of
the Registration Statement.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Portland, Oregon
September 24, 1996
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement of
U. S. Bancorp on Form S-3 of our report dated January 19, 1995, on our audits
of the consolidated financial statements of West One Bancorp and subsidiaries
as of December 31, 1994, and for each of the two years in the period ended
December 31, 1994, which report included an explanatory paragraph relating to
West One Bancorp's change in accounting for investment securities in 1993 and
is included in U. S. Bancorp's 1995 Annual Report on Form 10-K. We also
consent to the reference to our firm under the caption "Experts."
/s/ COOPERS & LYBRAND L.L.P.
Boise, Idaho
September 24, 1996
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints GERRY B. CAMERON, STEVEN P. ERWIN,
DWIGHT V. BOARD, and SHERYL DAWSON, and each of them, such person's true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for such person and in his or her name, place, and stead, in
any and all such person's capacities with U. S. Bancorp, an Oregon
corporation, to sign a registration statement on Form S-3 relating to
$1,000,000,000 aggregate principal amount at stated maturity of the
corporation's debt securities and any and all amendments (including post-
effective amendments) thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission under the Securities Act of 1933, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing and to execute any and all
instruments which they or each of them deem necessary or desirable in
connection with said registration statement as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or each of them, or
their or his or her substitute or substitutes, may lawfully do or cause to be
done by virtue hereof. This power of attorney may be executed in one or more
counterparts, which taken together shall constitute one and the same original.
IN WITNESS WHEREOF, this power of attorney has been executed by
each of the undersigned as of the 16th day of April, 1996.
Signature Title
--------- -----
/s/ GERRY B. CAMERON Chairman of the Board and Chief
Gerry B. Cameron Executive Officer and Director
/s/ STEVEN P. ERWIN Executive Vice President and
Steven P. Erwin Chief Financial Officer
/s/ HARRY BETTIS Director
Harry Bettis
/s/ CAROLYN SILVA CHAMBERS Director
Carolyn Silva Chambers
/s/ FRANKLIN G. DRAKE Director
Franklin G. Drake
/s/ ROBERT L. DRYDEN Director
Robert L. Dryden
/s/ JOHN B. FERY Director
John B. Fery
/s/ JOSHUA GREEN III Director
Joshua Green III
/s/ DANIEL R. NELSON Director
Daniel R. Nelson
/s/ ALLEN T. NOBLE Director
Allen T. Noble
/s/ PAUL A. REDMOND Director
Paul A. Redmond
/s/ N. STEWART ROGERS Director
N. Stewart Rogers
/s/ BENJAMIN R. WHITELEY Director
Benjamin R. Whiteley
<PAGE>
Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
-------
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-------------------------------------
U.S. BANCORP
(Exact name of obligor as specified in its charter)
Oregon 93-0571730
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification
number)
111 S.W. Fifth Avenue
Portland, Oregon 97204
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939,
as amended, the trustee, The First National Bank of Chicago, a
national banking association organized and existing under the laws
of the United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Chicago and State of
Illinois, on the 17th day of September, 1996.
The First National Bank of Chicago,
Trustee
By /s/ Steven M. Wagner
Steven M. Wagner
Vice President
<PAGE>
* Exhibit 1, 2 and 3 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 12 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 26 to the Registration Statement on Form S-3 of The
CIT Group Holdings, Inc., filed with the Securities and Exchange Commission on
February 16, 1993 (Registration No. 33-58418).
<PAGE>
EXHIBIT 4
BY-LAWS
OF
THE FIRST NATIONAL BANK OF CHICAGO
AS AMENDED AND RESTATED JULY 12, 1996
<PAGE>
BY-LAWS
OF
THE FIRST NATIONAL BANK OF CHICAGO
ARTICLE I
CORPORATE GOVERNANCE
To the extent not inconsistent with applicable Federal banking statutes
or regulations, or safe and sound banking practices, the Bank shall follow the
corporate governance procedures of the Delaware General Corporation Law, as
amended.
ARTICLE II
SHAREHOLDERS
SECTION 1. Annual Meeting. The regular annual meeting of shareholders
of the Bank to elect directors and to transact whatever other business may
properly come before the meeting shall be held in its main office on the
second Friday in May if not a legal holiday under the Laws of Illinois, and if
a legal holiday, then on the next business day following, at 11:30 A.M., or on
such other date and time as shall be designated by the Board of Directors.
If, for any cause, the annual election of directors should not be held on that
date, the Board shall order the election to be held on some subsequent day, of
which special notice shall be given.
SECTION 2. Judges of Election. To the extent required by law, the
Board of Directors shall, prior to the time of the election of directors,
appoint three persons to be Judges of Election, who shall hold and conduct the
same, and who shall, after the election has been held, certify under their
hands to the Cashier of the Bank the result thereof and the names of the
directors-elect.
SECTION 3. Notice to Directors-Elect. The Cashier upon receiving the
Certificate of the Judges of Election as aforesaid, shall cause the same to be
recorded upon the minute book of the Bank, and shall notify the
directors-elect of their election and of the time at which they are required
to meet at the main office of the Bank for the purpose of organizing the new
Board. If at the time fixed for the meeting of the directors-elect there
should not be a quorum present, the members present may adjourn from time to
time until a quorum is obtained.
SECTION 4. Special Meetings. Special meetings of the shareholders may
be called in accordance with Article EIGHTH of the Bank's Articles of
Association.
SECTION 5. Record Date. The Board of Directors may fix in advance a
day not more than sixty (60) or less than ten (10) days prior to the date of
holding any regular or special meeting of shareholders as the day as of which
shareholders entitled to notice of and to vote at such meeting shall be
determined.
SECTION 6. Notice. The Bank shall mail notice of any meeting of
shareholders at least 10 days prior to the meeting by first class mail, unless
the Office of the Comptroller of the Currency determines that an emergency
circumstance exists. If the Bank is a wholly-owned subsidiary of a company,
the sole shareholder may waive notice of the shareholder's meeting.
SECTION 7. Consent of Shareholders in Lieu of Annual or Special
Meeting. Unless otherwise restricted by law or the Articles of Association,
any action which may be taken at any annual or special shareholder meeting may
be taken without a meeting, without prior notice and without a vote, if
written consent setting forth the action so taken shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted. Prompt notice of
the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those shareholders who did not give written
consent.
SECTION 8. Minutes. The proceedings of shareholders at all regular and
special meetings or by written consent in lieu of a meeting shall be recorded
in the minute book, together with the Articles of Association of the Bank and
the returns of the Judges of Election. The minutes of each meeting shall be
signed by the Presiding Officer, and attested by the Cashier, or other officer
of the Bank acting in place of the Cashier.
ARTICLE III
DIRECTORS
SECTION 1. Authority. The Board of Directors shall have the power to
manage and administer the business and affairs of the Bank. Except as
expressly limited by law, all corporate powers of the Bank shall be vested in
and may be exercised by the Board of Directors.
SECTION 2. Number. The Board of Directors shall at all times consist
of not less than five nor more than twenty-five individuals. The exact number
within such minimum and maximum limits shall be fixed and determined from time
to time by resolution of a majority of the full Board of Directors or by
resolution of the shareholders at any meeting thereof; provided, however, that
the Board of Directors may not increase the number of directors to a number
which: (1) exceeds by more than two the number of directors last elected by
shareholders where such number was fifteen or less; or (ii) exceeds by more
than four the number of directors last elected by shareholders where such
number was sixteen or more, but in no event shall the number of directors
exceed twenty-five.
SECTION 3. Term of Office. Each director shall hold office from the
date of his election or appointment until the next annual shareholder meeting.
Any director ceasing to be the owner of the amount of stock required by law or
in any other manner becoming disqualified shall thereupon vacate his office as
director.
SECTION 4. Compensation. The Board of Directors may provide that a
reasonable fee be paid to any of its members or to the members of any duly
authorized committee for services rendered. No such payment shall preclude
any director from serving the Bank in any other capacity and receiving
compensation therefor.
SECTION 5. Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates, times and locations as determined by
the Chairman of the Board and communicated in writing to the directors.
SECTION 6. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the President. Such
meetings shall be held at such times and at such places as shall be determined
by the officer calling the meeting. Notice of any special meeting of
directors shall be given to each director at the director's business or
residence in writing by hand delivery, first-class or overnight mail or
courier service, telegram or facsimile transmission, or orally by telephone.
If mailed by first-class mail, such notice shall be deemed adequately
delivered when deposited in the United States mail so addressed, with postage
thereon prepaid, at least two (2) days before such meeting. If by telegram,
overnight mail or courier service, such notice shall be deemed adequately
delivered when the telegram is delivered to the telegraph company or the
notice is delivered to the overnight mail or courier service company at least
twenty-four (24) hours before such meeting. If by facsimile transmission,
such notice shall be deemed adequately delivered when the notice is
transmitted at least twelve (12) hours before such meeting. Such notice need
not state the purposes of the meeting. Any or all directors may waive notice
of any meeting, either before or after the meeting. Attendance of a director
at a meeting shall constitute a waiver of notice of such meeting, except when
the director attends for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
SECTION 7. Quorum; Majority Vote. A quorum of directors shall be
required to transact business at any regular or special meeting of the Board
of Directors. A majority of the directors shall constitute a quorum. Each
director shall be entitled to one vote. A vote by a majority of the directors
present at any regular or special meeting of the Board of Directors at which a
quorum is present shall be required to approve any matter or proposal at any
such meeting.
SECTION 8. Vacancies. When any vacancy occurs in the Board of
Directors, a majority of the remaining members of the Board, according to the
laws of the United States, may appoint a director to fill such vacancy at any
regular meeting of the Board of Directors, or at a special meeting called for
that purpose at which a quorum is present, or if the directors remaining in
office constitute fewer than a quorum of the Board of Directors, by the
affirmative vote of a majority of all the directors remaining in office, or by
shareholders at a special meeting called for that purpose. At any such
shareholder meeting, each shareholder entitled to vote shall have the right to
multiply the number of votes he or she is entitled to cast by the number of
vacancies being filled and cast the product for a single candidate or
distribute the product among two or more candidates. A vacancy that will
occur at a specific later date (by reason of a resignation effective at a
later date) may be filled before the vacancy occurs but the new director may
not take office until the vacancy occurs.
SECTION 9. Presiding Officer. The Chairman of the Board shall
preside at all meetings of the Board of Directors at which he is present. In
the absence of the Chairman of the Board, the President shall perform the
duties of the Chairman of the Board and shall preside at the meetings of the
Board of Directors. In the absence of the Chairman of the Board and the
President, the Vice Chairman of the Board (or in the event there be more than
one Vice Chairman of the Board, the Vice Chairmen of the Board in the order
designated, or in the absence of any designation, then in the order of their
election) shall perform their duties and shall preside at the meetings of the
Board of Directors.
SECTION 10. Minutes of Meeting. The Cashier shall act as secretary to
the Board of Directors to take minutes at any regular or special meeting of
the Board of Directors. If the Cashier is not present at any such meeting,
the Chairman of the Board may designate a secretary pro tem to take minutes at
the meeting. The Cashier or secretary pro tem shall record the actions and
proceedings at each regular or special meeting of the Board of Directors as
minutes of the meeting and shall maintain such minutes in a minute book of
proceedings of such meetings of the Board of Directors. Minutes of each such
meeting shall be signed by the presiding officer and secretary of each
meeting.
SECTION 11. Participation in Meetings by Telephone Unless otherwise
restricted by law or the Articles of Association, members of the Board of
Directors, or of any committee thereof, may participate in a meeting of the
Board of Directors or committee by means of conference telephone or similar
communications equipment which allows each person participating in the meeting
to hear each other. Participation in such a meeting shall constitute presence
in person at such meeting.
SECTION 12. Consent of Directors in Lieu of Meeting. Unless otherwise
restricted by law or the Articles of Association, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board
or committee, as the case may be, consent thereto in writing, and the writing
or writings are filed with the minutes of proceedings of the Board or
committee.
SECTION 13. Committees. The Board of Directors may, by resolution
passed by a majority of the entire Board, designate one or more committees,
each committee to consist of two or more of the Directors of the Bank. The
Board of Directors may designate one or more Directors as alternate members of
any committee, who may replace any absent or disqualified member at any
meeting of the committee. Any such committee, to the extent provided in the
resolution, shall have and may exercise the powers of the Board of Directors
in the management of the business and affairs of the Bank, and may authorize
the seal of the Bank to be affixed to all papers which may require it;
provided, however, that in the absence or disqualification of any member of
such committee or committees, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute
a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any such absent or disqualified member.
Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board of Directors.
As used in these By-Laws, "entire Board" means the total number of Directors
the Bank would have if there were no vacancies.
There shall be an Executive Committee composed and created as the Board
of Directors may designate by resolution passed by a majority of the entire
Board. During intervals between the regular meetings of the Board of
Directors, the Executive Committee, to the extent permitted by law, the
Articles of Association of the Bank and the By-Laws, shall have and may
exercise the powers of the Board of Directors in the management of the
business and affairs of the Bank.
Unless otherwise provided by the Board of Directors, a majority of the
members of any committee appointed by the Board of Directors pursuant to this
Section shall constitute a quorum at any meeting thereof and the act of a
majority of the members present at a meeting at which a quorum is present
shall be the act of such committee. Any such committee shall, subject to any
rules prescribed by the Board of Directors, prescribe its own rules for
calling, giving notice of and holding meetings and its method of procedure at
such meetings and shall keep a written record of all action taken by it. Each
committee shall keep regular minutes of its meetings and report the same to
the Board of Directors when required.
SECTION 14. Honorary Directors. Any person who has at any time been
Chairman of the Board, President or Vice Chairman of the Board of the Bank
may, after retirement from the Board of Directors, be appointed by the Board
of Directors as an Honorary Director on a year-to-year basis. In no case
shall an Honorary Director serve as such for more than five years. Honorary
Directors shall serve in an advisory capacity to the Board of Directors, shall
have no vote and shall not be considered directors for the purpose of
determining a quorum. Honorary Directors shall be reimbursed for their
expenses in attending meetings of the Board of Directors and shall receive
such fees, if any, for attendance at each meeting of the Board of Directors as
may be fixed from time to time by the Board of Directors but shall not receive
any other directors' fees or any other compensation for their services.
ARTICLE IV
OFFICERS
SECTION 1. Officer Titles. The officers of the Bank shall include a
Chairman of the Board and a President and may include one or more Vice
Chairmen of the Board, Executive Vice Presidents, Senior Vice Presidents,
First Vice Presidents, Vice Presidents and Assistant Vice Presidents, a
General Auditor, a General Counsel, a Cashier, and such other officers as may
be appropriate for the prompt and orderly transaction of the business of the
Bank. Individuals appointed as Chairman of the Board, President and Vice
Chairman of the Board must be members of the Board. The same person may hold
any two or more offices. The Chairman of the Board shall have such authority
to establish officer titles as from time to time delegated by the Board of
Directors and to delegate such authority further to other officers of the
Bank.
SECTION 2. Chief Executive Officer. The Chairman of the Board shall be
the chief executive officer of the Bank. In case of the death or disability
of the Chairman of the Board, his powers shall be exercised and his duties
discharged by the President. In the event of the death or disability of the
Chairman of the Board and the President, the Vice Chairman of the Board (or in
the event there be more than one Vice Chairman of the Board, the Vice Chairmen
of the Board in the order designated, or in the absence of any designation,
then in the order of their election) shall exercise the powers and discharge
the duties of the Chairman of the Board.
SECTION 3. Election of Officers. The Board of Directors of the Bank
shall have authority to appoint the officers of the Bank. The Chairman of the
Board shall have such authority to appoint officers as from time to time
delegated by the Board of Directors, and to delegate such authority further to
other officers of the Bank.
SECTION 4. Authority and Responsibility. The authorities and
responsibilities of all officers, in addition to those specifically prescribed
herein, shall be those usually pertaining to their respective offices, or as
may be designated by the Board of Directors or by the Chairman of the Board or
by the President, or by any officer of the Bank designated by one of the
foregoing.
SECTION 5. Term of Office. Officers shall be appointed for an
indefinite term, and their employment may be terminated or they may be removed
from office at any time. The Board of Directors shall have authority to
terminate or remove officers of the Bank. The Chairman of the Board shall
have such authority to terminate or remove officers as from time to time
delegated by the Board of Directors, and to delegate such authority further to
other officers of the Bank.
SECTION 6. Surety. All officers and employees of the Bank who shall be
responsible for any moneys, funds or valuables of the Bank shall give bond, or
be covered by a blanket bond, in such penal sum and with such security as
shall be approved by the Board, conditioned for the faithful and honest
discharge of their duties as such officers or employees and that they will
faithfully apply and account for all such moneys, funds and valuables and
deliver the same on proper demand to the order of the Board of the Bank, or to
the person or persons authorized to receive the same.
ARTICLE V
SEAL
SECTION 1. Description. The following is a description of the Seal
adopted by the Board of the Bank:
Female with left arm resting on shield, bale of goods and sheaf of grain
at her side, ship and sea in the distance; the whole surrounded with the
words, "The First National Bank of Chicago".
SECTION 2. Attestation. Any instrument which is executed for and on
behalf of the Bank by its duly authorized officers may, when necessary, be
attested and sealed with the corporate seal by any officer of the Bank other
than the officer who executes such instrument on behalf of the Bank.
ARTICLE VI
TRANSFERS OF REAL ESTATE
Any Vice President or higher ranking officer shall have authority on
behalf of and in the name of the Bank, to execute any document or instrument
and to take action which may be necessary or appropriate to purchase, convey,
lease, or otherwise affect any real estate or interest in real estate owned or
to be owned by the Bank; provided, however, any document or instrument
purchasing, conveying or leasing real estate used or to be used by the Bank as
banking facilities must be executed by a Senior Vice President or higher
ranking officer, or any other officer designated by any of the foregoing. Any
Assistant Vice President or higher ranking officer shall have authority to
execute and deliver on behalf of and in the name of the Bank, releases of
mortgages or trust deeds.
ARTICLE VII
STOCK AND STOCK CERTIFICATES
SECTION 1. Increase of Stock. In the event of any increase in the
capital stock of the Bank the preemptive rights of the shareholders in respect
of any such increased stock shall be as set forth in Article FIFTH of the
Articles of Association.
Any warrants or certificates issuable to shareholders in connection with
any increase of the capital stock of the Bank, shall be delivered to the
respective shareholders entitled thereto, either by hand or by mail,
first-class postage prepaid, addressed to their respective addresses as shown
on the books of the Bank.
If, in the event of a sale of additional shares, any subscription rights
shall not have been exercised at the expiration of the specified subscription
period, such unsubscribed new shares may be issued and sold at such price, not
less than the par value thereof, to such persons and on such terms as the
Board of Directors may determine.
SECTION 2. Transfers of Stock. The stock of the Bank shall be
assignable only upon the books of the Bank, subject to the restrictions of the
Act, and a transfer book shall be kept in which all assignments and transfers
of stock shall be made. Transfers of stock may be suspended preparatory to
any election or payment of any dividends.
SECTION 3. Certificates of Stock. Certificates of stock signed by any
Vice President or higher ranking officer and the Cashier or any Assistant
Cashier may be issued to shareholders, and the Certificates shall state upon
the face thereof that the stock is transferable only upon the books of the
Bank. If such Certificates are manually countersigned by two other officers
of the Bank, the signatures of the officers designated in the preceding
sentence may be facsimiles, engraved or printed. In case any officer who has
signed or whose facsimile signature has been placed upon such Certificates
shall have ceased to be such officer before such Certificates are issued, they
may be issued by the Bank with the same effect as if such officer had not
ceased to be such at the date of issue.
In case of transfer of stock, new Certificates of stock shall not be
issued until other Certificate or Certificates of stock of an equal amount
shall first have been surrendered and cancelled.
Any one of the following officers of the Bank: the Chairman of the
Board, the President, or any Vice Chairman of the Board is each hereby
authorized to cause new Certificates of stock of the Bank to be issued to
replace Certificates reported to have been lost, stolen or destroyed, upon
receipt of: (a) appropriate affidavit or affidavits setting forth whether the
Certificates were lost, stolen or destroyed and the circumstances thereof, and
(b) a bond or bonds (blanket or otherwise) or an agreement or agreements of
indemnity, sufficient in the opinion of any of such officers to protect the
interests of the Bank issuing such new Certificates.
ARTICLE VIII
BANKING HOURS
The Bank shall be open for business during such days of the year and for
such hours as the Board of Directors or any officer of the Bank designated by
the Board of Directors may from time to time determine.
ARTICLE IX
CONTRACTS, CERTIFICATES OF DEPOSIT AND NOTES
SECTION 1. Execution of Contracts. Any officer of the bank and such
other persons as may be authorized by the Board of Directors are severally and
respectively authorized to execute documents and to take action in the Bank's
name in connection with any and all transactions conducted in the ordinary
course of business of the Bank.
SECTION 2. Certificates of Deposit and Notes. Notwithstanding the
foregoing, all certificates of deposits and notes evidencing obligations of
the Bank shall be signed either manually or by facsimile signature by any
officer of the Bank, and, if such signature is not a manual signature, shall
be validated by the manual signature of another officer of the Bank whose
signature does not already appear on said certificate of deposit or note or by
the authorized officers of corporate fiduciaries or agents with whom the Board
of Directors may from time to time by resolution authorize the officers of the
Bank to contract for services in connection with the validation and delivery
of certificates of deposit or notes issued by the Bank.
ARTICLE X
VOTING RIGHTS
The vote of the Bank as stockholder in any corporation in which it may
hold stock or upon any securities carrying voting rights which it shall have
the right to vote in its individual capacity as a Bank, shall be cast at any
stockholders' or shareholders' meeting by any Vice President or higher ranking
officer, or the Cashier, in person, or by some person or persons authorized by
written proxy signed by one of said officers.
In all cases where shares of stock or other securities carrying voting
rights and owned by the Bank shall be held in the name of a nominee of the
Bank, any Vice President or higher ranking officer, or the Cashier, may
authorize such nominee to vote such stock or other securities in person,
either unconditionally or upon such terms, limitations, or conditions as such
officer may direct, or any such officer may authorize such nominee to execute
a proxy to vote such shares of stock or other securities carrying voting
rights, either unconditionally or upon such terms, conditions and/or
limitations as such officer shall approve.
ARTICLE XI
EXAMINATIONS
It shall be the duty of the General Auditor to examine, from time to
time, the various operations of the Bank, verify its assets and liabilities,
and perform such other procedures as are required to determine that the
accounting records are accurate and to ascertain whether the Bank is in a
sound and solvent condition. Major discrepancies and defalcations shall be
reported to the Board promptly and other reports shall be made directly to the
Board when deemed appropriate either by the General Auditor or the Board. In
the event of the death, resignation, absence or inability of the General
Auditor, the Board of Directors shall appoint a competent person who shall
make such examinations and reports, pending the election of a successor to the
General Auditor or the return of the General Auditor to his duties.
ARTICLE XII
BONDS OF INDEMNITY
Bonds of indemnity given to secure the issuance of duplicate or
substitute notes, bonds, stock certificates, checks, debentures or other
securities which may have been lost, destroyed or stolen or to secure the
payment of any such lost, destroyed or stolen securities or to secure the
payment by the Bank of funds deposited by any public authorities, shall be
executed by any Assistant Vice President or higher ranking officer, and, if
required, sealed with the corporate seal and attested by some other officer of
the Bank.
ARTICLE XIII
AUTHORITY TO SELL STOCKS, BONDS, ETC.
SECTION 1. U.S. Obligations. Any Assistant Vice President or higher
ranking officer may at any time, in his discretion, sell, assign and transfer
any and all United States bonds now standing, or which may hereafter stand, in
the name of the Bank, and to appoint one or more attorneys for that purpose.
SECTION 2. Other Obligations. Any Assistant Vice President or higher
ranking officer may at any time, in his discretion, sell, assign and transfer
any and all notes, bonds, certificates of indebtedness or obligations of any
corporation, firm or individual, which said notes, bonds, certificates of
indebtedness or obligations are now registered, or may hereafter be
registered, in the name of, or for the benefit of, the Bank, or are payable or
indorsed to the Bank.
SECTION 3. Stock. Any Assistant Vice President or higher ranking
officer may at any time in his discretion, sell, assign and transfer to any
assignee or transferee, for and on behalf of the Bank and in its name, any and
all shares of capital stock of any corporation or corporations held by the
Bank.
ARTICLE XIV
FIDUCIARY ACTIVITIES
1. Authority to Sign as Registrar, Transfer Agent, etc. Any officer of
the Bank shall have the right to sign, countersign, certify, register,
authenticate and identify all bonds, notes, interim certificates, and
depositary receipts, warrants, participation certificates, certificates of
stock and similar instruments for or in respect of which the Bank may be
acting as Trustee, Registrar, Transfer Agent or otherwise.
2. Authority to Vote Stock. The vote of the Bank as stockholder in any
corporation or mutual fund in which it may hold capital stock in any fiduciary
capacity, unless the governing instrument directs otherwise, may be voted by
any officer of the Bank in person, electronically or by written proxy signed
by one of said officers.
3. Authority to Sell, Assign and Transfer Stocks, etc. Any officer of
the Bank may sell, assign and transfer to any assignee or transferee for the
Bank and in its name, any and all shares of the capital stock or other
securities and obligations of any individual or entity held by the Bank in any
fiduciary capacity, and sign and deliver any instruments with respect to any
such items.
4. Authority to Sign Checks and Other Instruments. Any officer of the
Bank is authorized to sign for and on behalf of the Bank: checks against any
account or accounts of any organizational unit of the Bank exercising
fiduciary powers; petitions; schedules; accounts; reports; receipts for funds
or securities deposited with the Bank as fiduciary and all instruments or
documents that may be necessary or desirable in connection with the execution
of any fiduciary powers of the Bank.
5. Delegation of Authority. Anything in this Article XIV to the
contrary notwithstanding, the Chairman of the Board is authorized to designate
in writing such persons as shall be authorized in the name of the Bank to sign
or countersign any or all of the documents and instruments enumerated in this
Article XIV relating to transactions conducted in connection with the
execution of any fiduciary powers of the Bank.
ARTICLE XV
AMENDMENT OF BY-LAWS
These By-Laws may be changed or amended by the vote of a majority of the
directors present at any regularly constituted meeting of the Board of
Directors.
ARTICLE XVI
EMERGENCY OPERATION OF BANK
In the event of an emergency declared by the President of the United
States or the person performing his functions, due to threatened or actual
enemy attack or disaster, the officers and employees of the Bank will continue
to conduct the affairs of the Bank under such guidance from the directors as
may be available, except as to matters which by statute require specific
approval of the Board of Directors, and subject to conformance with any
governmental directives during the emergency.
ARTICLE XVII
DELEGATION OF AUTHORITY
Each of the Chairman of the Board, the President, any Vice Chairman of
the Board and the Cashier of the Bank are severally and respectively
authorized to designate in writing such persons who shall be authorized in the
name and on behalf of the Bank to sign any document or instrument, including
certificates of deposit and notes, and to take action which may be necessary
or appropriate to the conduct of the Bank's business, in its individual
capacity or any other capacity. Any such authorization to sign such document
or instrument and to take any action may be general or limited as is
determined in the discretion of the Chairman of the Board, the President, any
Vice Chairman of the Board or the Cashier.
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
September 17, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of one or more indentures between
U.S. Bancorp and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ Steven M. Wagner
Steven M. Wagner
Vice President
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT 7
Legal Title of Bank: The First National Bank of ChicagoCall Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount
outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
Dollar Amounts in C400
Thousands RCFD BIL MIL THOU <-
----------------- ---- ------------ ------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) 0081 3,572,641 1.a.
b. Interest-bearing balances(2). . . . . . . 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) 1773 1,448,974 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold. . . . . . . . . . . . 0276 5,020,878 3.a.
b. Securities purchased under agreements to resell 0277 918,688 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C). . . . . . . . . . . . . . . . . RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for loan and lease losses RCFD 3123 379,232 4.b.c.
LESS: Allocated transfer risk reserve . . RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c). . . 2125 18,745,928 4.d.
5. Assets held in trading accounts. . . . . . . 3545 9,599,172 5.
6. Premises and fixed assets (including capitalized leases) 2145 623,289 6.
7. Other real estate owned (from Schedule RC-M) 2150 8,927 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . 2130 57,280 8.
9. Customers' liability to this bank on acceptances outstanding 2155 632,259 9.
10. Intangible assets (from Schedule RC-M). . . 2143 156,715 10.
11. Other assets (from Schedule RC-F) . . . . . 2160 1,592,088 11.
12. Total assets (sum of items 1 through 11). . 2170 49,335,206 12.
- ------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: The First National Bank of ChicagoCall Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued Dollar Amounts in
- --------------------- Thousands Bil Mil Thou
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<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) . . . . RCON 2200 16,878,87013.a.
(1) Noninterest-bearing(1). . RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing. . . . . . . . RCON 6636 9,022,990 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) RCFN 2200 12,677,05713.b.
(1) Noninterest bearing . . . . . . RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing. . . . . . . . RCFN 6636 11,910,121 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased. . . . . . RCFD 0278 1,318,96814.a.
b. Securities sold under agreements to repurchase RCFD 0279 1,197,58914.b.
15. a. Demand notes issued to the U.S. Treasury RCON 2840 104,54615.a.
b. Trading Liabilities.................................................RCFD 3548 6,431,78415.b.
16. Other borrowed money:
a. With original maturity of one year or less RCFD 2332 4,437,63616.a.
b. With original maturity of more than one year RCFD 2333 75,30816.b.
17. Mortgage indebtedness and obligations under capitalized
leases. . . . . . . . . . . . . RCFD 2910 283,04117.
18. Bank's liability on acceptance executed and outstanding RCFD 2920 632,25918.
19. Subordinated notes and debentures . . RCFD 3200 1,275,00019.
20. Other liabilities (from Schedule RC-G) RCFD 2930 892,94720.
21. Total liabilities (sum of items 13 through 20) RCFD 2948 46,205,00521.
22. Limited-Life preferred stock and related surplus RCFD 3282 022.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus RCFD 3838 023.
24. Common stock. . . . . . . . . . . . . RCFD 3230 200,85824.
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,349,16425.
26. a. Undivided profits and capital reserves RCFD 3632 584,87826.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . RCFD 8434 (3,951)26.b.
27. Cumulative foreign currency translation adjustments RCFD 3284 (748)27.
28. Total equity capital (sum of items 23 through 27) RCFD 3210 3,130,20128.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) RCFD 3300 49,335,20629.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent externalNumber
auditors as of any date during 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . ....RCFD 6724 N/A M.1.
1 = Independent audit of the bank conducted in accordance4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
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(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
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