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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 23, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FIRSTAR CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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WISCONSIN 39-1940778
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER IDENTIFICATION NO.)
ORGANIZATION)
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FIRSTAR CORPORATION
777 EAST WISCONSIN AVENUE
MILWAUKEE, WISCONSIN 53202
(414) 765-4321
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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JENNIE P. CARLSON, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL, AND SECRETARY
FIRSTAR CORPORATION
777 EAST WISCONSIN AVENUE
MILWAUKEE, WISCONSIN 53202
(414) 765-4321
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
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CRAIG M. WASSERMAN, ESQ. LEE MEYERSON, ESQ.
WACHTELL, LIPTON, ROSEN & KATZ SIMPSON THACHER & BARTLETT
51 WEST 52ND STREET 425 LEXINGTON AVENUE
NEW YORK, NY 10019 NEW YORK, NEW YORK 10017
(212) 403-1000 (212) 455-2000
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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.
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, please 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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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, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT
AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY
THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PRELIMINARY PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED , 1999)
(SUBJECT TO COMPLETION, DATED JUNE 23, 1999)
$500,000,000
FIRSTAR CORPORATION
[FIRSTAR LOGO]
MEDIUM-TERM NOTES, SERIES A
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
We plan to offer and sell notes with various terms, including the following:
- - Ranking as our senior or subordinated indebtedness
- - Stated maturities of 9 months or more from date of issue
- - Redemption and/or repayment provisions, if applicable, whether mandatory or at
the option of us or the holders of notes
- - Payments in U.S. dollars or one or more foreign currencies
- - Minimum denominations of $1,000 or other specified denominations for foreign
currencies
- - Book-entry or certificated form
- - Interest at fixed or floating rates, or no interest at all. The floating
interest rate may be based on one or more of the following indices plus or
minus a spread and/or multiplied by a spread multiplier:
- CD rate
- CMT rate
- commercial paper rate
- eleventh district cost of funds rate
- federal funds rate
- LIBOR
- prime rate
- treasury rate
We will specify the financial terms for each note, which may be different from
the terms described in this prospectus supplement, in the applicable pricing
supplement.
INVESTING IN NOTES INVOLVES INDEX AND CURRENCY RISKS. SEE "RISK FACTORS"
ON PAGE S-3.
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PRICE TO AGENTS' PROCEEDS
PUBLIC(1) COMMISSION(1) TO FIRSTAR (1)
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Per note........................................
Total(1)........................................
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(1) Or the equivalent thereof in one or more foreign or composite currencies.
We may sell notes to the agents referred to below as principal for resale at
varying or fixed offering prices or through the agents using their reasonable
efforts on our behalf. If we sell other securities referred to in the
accompanying prospectus, the aggregate initial offering price of the Notes that
we may offer and sell under this prospectus supplement is subject to reduction.
Our common stock is listed on the New York Stock Exchange, Inc. (ticker
symbol "FSR"). The address of our principal executive offices is 777 East
Wisconsin Avenue, Milwaukee, Wisconsin, 53202 and our telephone number is (414)
765-4518.
MERRILL LYNCH & CO.
DONALDSON, LUFKIN & JENRETTE
CS FIRST BOSTON
BA SECURITIES
GOLDMAN, SACHS & CO.
MORGAN STANLEY & CO.
SALOMON SMITH BARNEY
LEHMAN BROTHERS INC.
BEAR STEARNS
THE DATE OF THIS PROSPECTUS SUPPLEMENT IS , 1999.
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TABLE OF CONTENTS
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PAGE
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PROSPECTUS SUPPLEMENT
About This Prospectus Supplement; Pricing Supplements....... S-3
Risk Factors................................................ S-3
Description of Notes........................................ S-5
Certain United States Federal Income Tax Consequences....... S-23
Plan of Distribution........................................ S-31
PROSPECTUS
Firstar..................................................... 2
Where You Can Find More Information......................... 2
Use of Proceeds............................................. 4
Ratios of Earnings to Fixed Charges and to Combined Fixed
Charges and Preferred Stock Dividends..................... 4
Certain Regulatory Matters.................................. 5
Description of Debt Securities.............................. 10
Description of Preferred Shares............................. 22
Description of Depositary Shares............................ 27
Description of Common Stock................................. 30
Description of Securities Warrants.......................... 31
European Monetary Union..................................... 35
Plan of Distribution........................................ 36
Validity of Securities...................................... 36
Experts..................................................... 36
Forward-Looking Statements.................................. 37
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ABOUT THIS PROSPECTUS SUPPLEMENT; PRICING SUPPLEMENTS
We may use this prospectus supplement, together with the attached
prospectus and an attached pricing supplement, to offer our medium-term-notes,
Series A (the "NOTES") from time to time.
This prospectus supplement sets forth certain terms of the notes that we
may offer. It supplements the description of the debt securities contained in
the attached prospectus. If information in this prospectus supplement is
inconsistent with the prospectus, this prospectus supplement will apply and will
supersede that information in the prospectus.
Each time we issue notes, we will attach a pricing supplement to this
prospectus supplement. The pricing supplement will contain the specific
description of the notes we are offering and the terms of the offering. The
pricing supplement may also add, update or change information in this prospectus
supplement or the attached prospectus. Any information in the pricing
supplement, including any changes in the method of calculating interest on any
note, that is inconsistent with this prospectus supplement will apply and will
supersede that information in this prospectus supplement.
It is important for you to read and consider all information contained in
this prospectus supplement and the attached prospectus and pricing supplement in
making your investment decision. You should also read and consider the
information in the documents we have referred you to in "Where You Can Find More
Information" on page of the attached prospectus.
RISK FACTORS
An investment in the notes involves certain risks. Before you decide to
purchase any of the notes, you should carefully consider the following risk
factors, in addition to the other information included in this prospectus
supplement and the attached prospectus. In particular, risks involving notes
denominated in currencies other than U.S. dollars generally depend on factors
over which we have no control and which cannot be readily foreseen, such as
economic and political events and the supply of and demand for the relevant
currencies.
FLUCTUATIONS IN EXCHANGE RATES COULD DECREASE THE VALUE OF NOTES DENOMINATED IN
CURRENCIES OTHER THAN U.S. DOLLARS.
Your investment in a note having a specified currency other than U.S.
dollars entails significant risks that are not associated with a similar
investment in a security denominated in U.S. dollars. Those risks include the
possibility of significant changes in rates of exchange between the U.S. dollar
and that specified currency. In recent years, rates of exchange between the U.S.
dollar and certain currencies have been highly volatile, and that volatility may
be expected in the future. Fluctuations in any particular exchange rate that
have occurred in the past are not necessarily indicative, however, of
fluctuations in the rate that may occur during the term of any note.
Depreciation of the specified currency for a note against the U.S. dollar would
result in a decrease in the effective yield of that note below its coupon rate
and, in certain circumstances, could result in a substantial loss to the
investor on a U.S. dollar basis.
GOVERNMENTS COULD IMPOSE EXCHANGE CONTROLS DECREASING EXCHANGE RATES AND OUR
ABILITY TO MAKE PAYMENTS IN SPECIFIED CURRENCIES OTHER THAN U.S. DOLLARS.
Governments have in the past imposed, and may in the future impose,
exchange controls that could affect exchange rates as well as the availability
of a specified currency for making payments in respect of notes denominated in
that currency. At present, we have identified the following currencies in which
payments of principal, premium and interest on notes may be made: Australian
dollars, Canadian dollars, Danish kroner, English pounds sterling, French
francs, German deutsche marks, Italian lire, Japanese yen, New Zealand dollars,
U.S. dollars and Euros. However, we may determine at any time to issue notes
with specified currencies other than those listed. Exchange controls will not
restrict or prohibit payments of principal, premium or interest in any specified
currency. Even if there are no actual exchange controls, it is possible that, on
a payment date, the currency in which amounts then due would not be available to
us. In
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that event, we will make such payments in the manner set forth under
"Description of Notes -- Payment of Principal and Interest" above.
This prospectus supplement and the accompanying prospectus do not describe
all the risks of an investment in notes denominated in a currency other than
U.S. dollars, and we disclaim any responsibility to advise prospective
purchasers of those risks as they exist at the date of this prospectus
supplement or as such risks may change from time to time. You should consult
your own financial and legal advisors as to the risks entailed by an investment
in notes denominated in a currency other than U.S. dollars. Such notes are not
an appropriate investment for persons who are unsophisticated with respect to
foreign currency transactions.
The information set forth in this prospectus supplement is directed to
prospective purchasers of notes who are U.S. residents, and we disclaim any
responsibility to advise prospective purchasers who are residents of countries
other than the U.S. with respect to any matters that may affect the purchase or
holding of, or receipt of payments of principal, premium or interest in respect
of, notes. Those persons should consult their own advisors with regard to such
matters.
Any pricing supplement relating to notes having a specified currency other
than U.S. dollars will contain a description of any material exchange controls
affecting such currency and any other required information concerning such
currency.
WE MAY MAKE PAYMENTS REQUIRED TO BE MADE IN SPECIFIED CURRENCIES OTHER THAN U.S.
DOLLARS IN U.S. DOLLARS IF THOSE SPECIFIED CURRENCIES ARE UNAVAILABLE, POSSIBLY
SUBJECTING HOLDERS OF NOTES TO UNFAVORABLE EXCHANGE RATES.
Except as set forth below, if payment in respect of a note is required to
be made in a specified currency other than U.S. dollars and that currency is
unavailable due to the imposition of exchange controls or other circumstances
beyond our control or is no longer used by the government of the country issuing
that currency or for the settlement of transactions by public institutions of or
within the international banking community, then all payments in respect of that
note shall be made in U.S. dollars until that currency is again available or so
used. The amounts so payable on any date in that currency shall be converted
into U.S. dollars on the basis of the most recently available market exchange
rate for that currency or as otherwise indicated in the applicable pricing
supplement. Any payment in respect of that note made under such circumstances in
U.S. dollars will not constitute an Event of Default (as defined in the
Indenture) under the Indenture under which such note shall have been issued.
All determinations referred to above made by the Trustee or the exchange
rate agent, as the case may be, will be at its sole discretion and will, in the
absence of manifest error, be conclusive for all purposes and binding on holders
of notes.
COURT AWARDS FOR NOTES DENOMINATED IN CURRENCIES OTHER THAN U.S. DOLLARS WILL BE
MADE IN THOSE CURRENCIES AND CONVERTED TO U.S. DOLLARS AT EXCHANGE RATES THAT
MAY BE UNFAVORABLE.
The notes will be governed by and construed in accordance with the laws of
the State of New York. Courts in the United States customarily have not rendered
judgments for money damages denominated in any currency other than the U.S.
dollar. A 1987 amendment to the Judiciary Law of the State of New York provides,
however, that an action based upon an obligation denominated in a currency other
than U.S. dollars will be rendered in the foreign currency of the underlying
obligation and converted into U.S. dollars at the rate of exchange prevailing on
the date of the entry of the judgment or decree. This rate of exchange may be
unfavorable.
THE VALUE OF INDEXED NOTES MAY BE DECREASED SUBSTANTIALLY AS A RESULT OF
SIGNIFICANT CHANGE IN THE PRICES OF THE ITEMS THAT MAKE UP THE INDEX.
An investment in indexed notes may entail significant risks that are not
associated with a similar investment in a debt instrument that has a fixed
principal amount, is denominated in U.S. dollars and bears interest at either a
fixed rate or a floating rate determined by reference to nationally published
interest rate references. The risks of a particular indexed note will depend on
its terms, but may include,
S-4
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among other risks, the possibility of significant changes in the prices of
securities, currencies, intangibles, goods, articles or commodities or of other
objective price, economic or other measures making up the relevant index. Those
risks generally depend on factors over which we have no control and which cannot
readily be foreseen, such as economic and political events and the supply of and
demand on which indices are based. In recent years, currency exchange rates and
prices for various assets on which indices are based have been highly volatile,
and such volatility may be expected in the future. Fluctuations in any such
rates or prices that have occurred in the past are not necessarily indicative,
however, of fluctuations that may occur during the term of any indexed note.
In considering whether to purchase indexed notes, you should be aware that
the calculation of amounts payable in respect of indexed notes may involve
reference to an index determined by an affiliate of ours or to prices which are
published solely by third parties or entities which are not subject to
regulation under the laws of the United States. The risk of loss as a result of
the linkage of principal or interest payments on indexed notes to an index and
to the assets on which indices are based can be substantial. Prospective
purchasers should consult their own financial and legal advisors as to the risks
entailed by an investment in indexed notes.
IT MAY BE VERY DIFFICULT FOR HOLDERS TO SELL THEIR NOTES TO THIRD PARTIES.
We cannot assure you a trading market for your notes will ever develop or
be maintained. Many factors independent of our creditworthiness affect the
trading market. These factors include:
- the complexity and volatility of the index or formula applicable to
notes,
- the method of calculating the principal, premium and interest in respect
of the notes,
- the time remaining to the maturity of the notes,
- the outstanding amount of the notes,
- the redemption features of the notes,
- the amount of other debt securities linked to the index or formula
applicable to the notes, and
- the level, direction and volatility of market interest rates generally.
In addition, certain notes have a more limited trading market and
experience more price volatility because they were designed for specific
investment objectives or strategies. There may be a limited number of buyers
when you decide to sell such notes. This may affect the price you receive for
such notes or your ability to sell such notes at all. You should not purchase
notes unless you understand and know you can bear these investment risks.
DESCRIPTION OF NOTES
We have summarized certain terms of the notes, below. The summary below
supplements, and to the extent inconsistent therewith replaces, the description
of the general terms and provisions of the debt securities described in the
prospectus that we refer to in this document.
GENERAL
We will issue the notes under a senior debt indenture dated June 22, 1999
(the "INDENTURE"), with Citibank, N.A., as Trustee. At the date of this
prospectus supplement, the notes to be offered pursuant to this prospectus
supplement are limited to an aggregate initial public offering price or purchase
price of up to $500,000,000 or the equivalent of that amount in one or more
foreign or composite currencies, which amount is subject to reduction as a
result of the sale of other securities under the registration statement of which
this prospectus supplement and the accompanying prospectus form a part. We may
increase the aggregate amount of notes in the future. The U.S. dollar equivalent
of the public offering price or purchase price of a note denominated in one or
more foreign currencies or currency units (each a "SPECIFIED CURRENCY") will be
determined on the basis of the noon buying rate in New York City for cable
transfers in foreign currencies as certified for customs purposes by the Federal
Reserve Bank of New York (the
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"MARKET EXCHANGE RATE") for that specified currency on the applicable issue
date. That determination will be made by us or , as exchange rate
agent (the "EXCHANGE RATE AGENT"). The notes will be unsecured, will constitute
part of our senior indebtedness and will rank on an equal basis with all our
other senior unsecured debt.
The notes will be offered on a continuous basis. Each note will be issued
initially as either a book-entry note (a "BOOK-ENTRY NOTE") or, if specified in
the applicable pricing supplement, a certificated note. Except as described in
the prospectus under "Description of Debt Securities -- Temporary Global
Securities," book-entry notes will not be issuable as certificated notes. See
"Book-Entry System" below.
Unless otherwise specified in the applicable pricing supplement, the
authorized denominations of notes denominated in U.S. dollars will be $1,000 and
any larger amount that is an integral multiple of $1,000, and the authorized
denominations of notes having a specified currency other than U.S. dollars will
be the approximate equivalents of the U.S dollar amount in the specified
currency.
Unless otherwise specified in the applicable pricing supplement, each note
will mature on a Business Day nine months or more from its date of issue, as
selected by the purchaser of the note and agreed to by us. We may, at our
option, extend the maturity date of the notes. Each note may also be subject to
redemption at our option, or repayment at the option of the holder, prior to the
stated maturity date of the note. Each floating rate note will mature on an
interest payment date for that note.
The pricing supplement relating to a note will describe the following
terms:
- the specified currency for that note;
- whether that note bears interest at a fixed rate, a floating rate or is
an amortizing note and/or an indexed note;
- the price (expressed as a percentage of the aggregate principal amount or
face amount of the note) at which that note will be issued;
- the date on which that note will be issued (the "ORIGINAL ISSUE DATE");
- the date of stated maturity of the note;
- if that note bears interest at a fixed rate, the rate per annum at which
that note will bear interest, if any, and whether and the manner in which
that rate may be changed prior to its date of stated maturity;
- if that note bears interest at a floating rate, the base rate, the
initial interest rate, the interest reset period or the interest reset
dates, the interest payment dates, and, if applicable, the index
maturity, the maximum interest rate, the minimum interest rate, the
spread or spread multiplier, and any other terms relating to the
particular method of calculating the interest rate for that note and
whether and the manner in which the spread or spread multiplier may be
changed prior to its date of stated maturity;
- whether that note is an original issue discount note;
- if that note is an amortizing note, the terms for repayment prior to its
stated maturity date;
- if that note is an indexed interest rate note, the manner in which the
amount of any interest payment will be determined;
- if that note is an indexed principal note, its face amount and the manner
in which the principal amount payable at the stated maturity date of the
note will be determined;
- whether that note may be redeemed at our option, or repaid at the option
of the holder, prior to the stated maturity date as described under
"-- Optional Redemption, Repayment and Repurchase" below and, if so, the
provisions relating to that redemption or repayment, including, in the
case of an original issue discount note or indexed note, the information
necessary to determine the amount due upon redemption or repayment;
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- whether that note is subject to an optional extension beyond its stated
maturity date as described under "-- Extension of Maturity" below; and
- any other terms of that note not inconsistent with the provisions of the
indenture under which that note will be issued.
We may use the term "BUSINESS DAY" to mean any day, other than a Saturday
or Sunday, that is neither a legal holiday nor a day on which commercial banks
are authorized or required by law, regulation or executive order to close in The
City of New York; provided, however, that, with respect to foreign currency
notes, a "Business Day" does not include a day on which commercial banks are
authorized or required by law, regulation or executive order to close in the
principal financial center of the country issuing the specified currency (or, if
the specified currency is Euro, that day is also a day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET)
System is open); provided, further, that, with respect to notes as to which
LIBOR is an applicable interest rate basis, that day is also a London Business
Day. "LONDON BUSINESS DAY" means a day on which commercial banks are open for
business (including dealings in the Designated LIBOR Currency) in London.
We may use the term "PRINCIPAL FINANCIAL CENTER" to mean (a) the capital
city of the country issuing the specified currency, or (b) the capital city of
the country to which the Designated LIBOR Currency relates, as applicable,
except, in the case of (a) or (b) above, that with respect to U.S. dollars,
Australian dollars, Canadian dollars, Deutsche marks, Dutch guilders, Portuguese
escudos, South African rand and Swiss francs, the "principal financial center"
shall be the City of New York, Sydney and (solely in the case of the specified
currency) Melbourne, Toronto, Frankfurt, Amsterdam, London (solely in the case
of the Designated LIBOR Currency), Johannesburg and Zurich, respectively.
A "basis point" or "bp" equals one one-hundredth of a percentage point.
PAYMENT OF PRINCIPAL AND INTEREST
The principal of and any premium and interest on each note are payable by
us in the specified currency for that note. If the specified currency for a note
is other than U.S. dollars, we will (unless otherwise specified in the
applicable pricing supplement) arrange to convert all payments in respect of
that note into U.S. dollars in the manner described in the following paragraph.
The holder of a note having a specified currency other than U.S. dollars may (if
the applicable pricing supplement and that note so indicate) elect to receive
all payments in respect of that note in the specified currency by delivery of a
written notice to the Trustee for that note not later than fifteen calendar days
prior to the applicable payment date, except under the circumstances described
under "Risk Factors -- Currency Risks -- Payment Currency" below. That election
will remain in effect until revoked by written notice to such Trustee received
not later than fifteen calendar days prior to the applicable payment date.
In the case of a note having a specified currency other than U.S. dollars,
the amount of any U.S. dollar payment in respect of that note will be determined
by the exchange rate agent based on the highest firm bid quotation expressed in
U.S. dollars received by the exchange rate agent at approximately 11:00 a.m.,
New York City time, on the second Business Day preceding the applicable payment
date (or, if no such rate is quoted on that date, the last date on which such
rate was quoted), from three (or, if three are not available, then two)
recognized foreign exchange dealers in The City of New York (one of which may be
one of our Agents (as defined herein) and another of which may be the exchange
rate agent) selected by the exchange rate agent, for the purchase by the quoting
dealer, for settlement on that payment date, of the aggregate amount of that
specified currency payable on that payment date in respect of all notes
denominated in that specified currency. All currency exchange costs will be
borne by the holders of those notes by deductions from those payments. If no
such bid quotations are available, those payments will be made in that specified
currency, unless that specified currency is unavailable due to the imposition of
exchange controls or to other circumstances beyond our control, in which case
those payments will be made as described under "Risk Factors -- Currency
Risks -- Payment Currency" below.
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Unless otherwise specified in the applicable pricing supplement, U.S.
dollar payments of interest on notes (other than interest payable at the stated
maturity date) will be made, except as provided below, by check mailed to the
registered holders of those notes (which, in the case of global securities
representing notes issued in book-entry form, will be a nominee of the
Depositary); provided, however, that, in the case of a note issued between a
regular record date and the related interest payment date, unless otherwise
specified in the related pricing supplement, interest for the period beginning
on the original issue date for that note and ending on such interest payment
date shall be paid on the next succeeding interest payment date to the
registered holder of that note on the related regular record date. A holder of
$10,000,000 (or the equivalent of $10,000,000 in a currency other than U.S.
dollars) or more in aggregate principal amount of notes of like tenor and term
shall be entitled to receive such U.S. dollar payments by wire transfer of
immediately available funds, but only if appropriate wire transfer instructions
have been received in writing by the Trustee not later than fifteen calendar
days prior to the applicable interest payment date. Simultaneously with the
election by any holder to receive payments in a currency other than U.S. dollars
(as provided above), such holder shall provide appropriate wire transfer
instructions to the Trustee. Unless otherwise specified in the applicable
pricing supplement, we will pay principal and any premium and interest payable
at the stated maturity date nine months or more from the date of issue of a note
in immediately available funds upon surrender of such note at the corporate
trust office or agency of the Trustee in The City of New York.
Unless otherwise specified in the applicable pricing supplement, if the
principal of any note issued at a discount is declared to be due and payable
immediately, the amount of principal due and payable with respect to that note
will be limited to the aggregate principal amount (or face amount, in the case
of an indexed principal note) of that note multiplied by the sum of its issue
price (expressed as a percentage of the aggregate principal amount) plus the
original issue discount amortized from the date of issue to the date of
declaration. This amortization will be calculated using the "interest method"
(computed in accordance with generally accepted accounting principles in effect
on the date of declaration).
The regular record date with respect to any payment date for interest
(which will generally be semi-annual for fixed rate notes on each March 1 and
September 1 (each an "INTEREST PAYMENT DATE")) for a floating rate note or for
an indexed rate note shall be the date (whether or not a Business Day) fifteen
calendar days immediately preceding that interest payment date, and for a fixed
rate note (unless otherwise specified in the applicable pricing supplement) will
be the March 15 or September 15 (whether or not a Business Day) immediately
preceding that interest payment date.
Interest rates offered by us with respect to the notes may differ depending
upon, among other factors, the aggregate principal amount of notes purchased in
any single transaction. Notes with different variable terms other than interest
rates may also be offered concurrently to different investors. Interest rates or
formulas and other terms of notes are subject to change by us from time to time,
but no such change will affect any note previously issued or as to which an
offer to purchase has been accepted by us.
FIXED RATE NOTES
Each fixed rate note will bear interest from its original issue date, or
from the last interest payment date to which interest has been paid or duly
provided for, at the rate per annum stated in the applicable pricing supplement
until the principal amount of that note is paid or made available for payment,
except as described below under "-- Subsequent Interest Periods" and
"-- Extension of Maturity," and except that if so specified in the applicable
pricing supplement, the rate of interest payable on certain fixed rate notes may
be subject to adjustment from time to time as described in such pricing
supplement. Unless otherwise set forth in the applicable pricing supplement, we
will pay interest on each fixed rate note semiannually in arrears on each
interest payment date. If an interest payment date with respect to any fixed
rate note would otherwise be a day that is not a Business Day, that interest
payment date will not be postponed; provided, however, that any payment required
to be made in respect of such note on a date (including the day of stated
maturity of the note) that is not a Business Day for such note need not be made
on that date, but may be made on the next succeeding Business Day with the same
force and effect as if made on that date, and no additional interest shall
accrue as a result of such delayed payment. Each payment of
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interest in respect of an interest payment date shall include interest accrued
through the day before such interest payment date. Interest on fixed rate notes
will be computed on the basis of a 360-day year of twelve 30-day months.
FLOATING RATE NOTES
Unless otherwise specified in the applicable pricing supplement, each
floating rate note will bear interest from its original issue date to the first
interest reset date (such period, the "INITIAL INTEREST PERIOD") for such note
at the initial interest rate set forth on the face of that note and in the
applicable pricing supplement. The interest rate on such note for each interest
reset period (and for the initial interest period if so specified in the
applicable pricing supplement) will be determined by reference to an interest
rate basis (the "BASE RATE"), plus or minus the spread, if any, or multiplied by
the spread multiplier, if any. The "SPREAD" is the number of basis points that
may be specified in the applicable pricing supplement as being applicable to
such note, and the "SPREAD MULTIPLIER" is the percentage that may be specified
in the applicable pricing supplement as being applicable to such note, except in
each case as described below under "-- Subsequent Interest Periods" and
"-- Extension of Maturity," and except that if so specified in the applicable
pricing supplement, the spread or spread multiplier on certain floating rate
notes may be subject to adjustment from time to time as described in such
pricing supplement.
The applicable pricing supplement will designate one of the following base
rates as applicable to a floating rate note:
- LIBOR (a "LIBOR NOTE");
- the commercial paper rate (a "COMMERCIAL PAPER RATE NOTE");
- the treasury rate (a "TREASURY RATE NOTE");
- the prime rate (a "PRIME RATE NOTE");
- CMT rate (a "CMT NOTE");
- the federal funds rate (a "FEDERAL FUNDS RATE NOTE");
- the CD rate (a "CD RATE NOTE");
- the eleventh district cost of funds rate (an "ELEVENTH DISTRICT COST OF
FUNDS RATE NOTE"); or
- such other base rate as is set forth in such pricing supplement and in
such note.
The "INDEX MATURITY" for any floating rate note is the period of maturity
of the instrument or obligation from which the base rate is calculated.
"H.15(519)" means the publication entitled "Statistical Release H.15(519),
'Selected Interest Rates,' " or any successor publication, published by the
Board of Governors of the Federal Reserve System. "COMPOSITE QUOTATIONS" means
the daily statistical release entitled "Composite 3:30 p.m. Quotations for U.S.
Government Securities" published by the Federal Reserve Bank of New York. "H.15
DAILY UPDATE" means the daily update of H.15(519), available through the
world-wide-web site of the Board of Governors of the Federal Reserve System at
http://www.bog.frb.fed.us/releases/h15/update, or any successor site or
publication.
As specified in the applicable pricing supplement, a floating rate note may
also have either or both of the following (in each case expressed as a rate per
annum on a simple interest basis): (a) a maximum limitation, or ceiling, on the
rate at which interest may accrue during any interest period ("MAXIMUM INTEREST
RATE"), and (b) a minimum limitation, or floor, on the rate at which interest
may accrue during any interest period ("MINIMUM INTEREST RATE"). In addition to
any maximum interest rate that may be applicable to any floating rate note, the
interest rate on a floating rate note will in no event be higher than the
maximum rate permitted by applicable law, as the same may be modified by U.S.
law of general application. The notes will be governed by the law of the State
of New York and, under such law as of the date of this prospectus supplement,
the maximum rate of interest under provisions of the penal law, with
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certain exceptions, is 25% per annum on a simple interest basis. Such maximum
rate of interest only applies to obligations that are less than $2,500,000.
Unless otherwise specified in the pricing supplement, the Trustee will be
the "CALCULATION AGENT." Upon request of the holder of any floating rate note,
the calculation agent will provide the interest rate then in effect and, if
determined, the interest rate will become effective as a result of a
determination on a date (the "INTEREST RATE DETERMINATION DATE") for the next
interest reset date with respect to the floating rate note. Unless otherwise
specified in the applicable pricing supplement, the "CALCULATION DATE," if
applicable, pertaining to any interest determination date will be the earlier of
(a) the tenth calendar day after the interest determination date, or, if this
day is not a Business Day, the next succeeding Business Day, or (b) the Business
Day immediately preceding the applicable interest payment date or the stated
maturity date, as the case may be.
The interest rate on each floating rate note will be reset daily, weekly,
monthly, quarterly, semiannually or annually (such period being the "INTEREST
RESET PERIOD" for such note, and the first day of each interest reset period
being an "INTEREST RESET DATE"), as specified in the applicable pricing
supplement. Unless otherwise specified in the applicable pricing supplement, the
interest reset dates will be, in the case of floating rate notes that reset
daily, each Business Day; in the case of floating rate notes (other than
treasury rate notes) that reset weekly, Wednesday of each week; in the case of
treasury rate notes that reset weekly, Tuesday of each week (except as provided
below under "-- Treasury Rate Notes"); in the case of floating rate notes that
reset monthly, the third Wednesday of each month; in the case of floating rate
notes that reset quarterly, the third Wednesday of March, June, September and
December of each year; in the case of floating rate notes that reset
semiannually, the third Wednesday of each of two months of each year specified
in the applicable pricing supplement; and, in the case of floating rate notes
that reset annually, the third Wednesday of one month of each year specified in
the applicable pricing supplement. If an interest reset date for any floating
rate note would otherwise be a day that is not a Business Day, that interest
reset date shall be postponed to the next succeeding Business Day, except that,
in the case of a LIBOR note, if that Business Day is in the next succeeding
calendar month, that interest reset date shall be the immediately preceding
Business Day.
Unless otherwise specified in the applicable pricing supplement, the rate
of interest that goes into effect on any interest reset date shall be determined
on the interest determination date preceding that interest reset date, as
further described below. Unless otherwise specified in the applicable pricing
supplement the interest determination date pertaining to an interest reset date
for a CD rate note or any floating rate note for which the interest rate is
determined with reference to the CD rate (the "CD RATE INTEREST DETERMINATION
DATE"), for a commercial paper rate note or any floating rate note for which the
interest rate is determined with reference to the commercial paper rate (the
"COMMERCIAL PAPER RATE INTEREST DETERMINATION DATE"), for a federal funds rate
note or any floating rate note for which the interest rate is determined with
reference to the federal funds rate (the "FEDERAL FUNDS RATE INTEREST
DETERMINATION DATE"), or for a prime rate note or any floating rate note for
which the interest rate is determined with reference to the prime rate (the
"PRIME RATE INTEREST DETERMINATION DATE"), or for a CMT rate note or any
floating rate note for which the interest rate is determined with reference to
the CMT rate (the "CMT RATE INTEREST DETERMINATION DATE"), will be the second
Business Day preceding the interest reset date.
The interest determination date pertaining to an interest reset date for a
LIBOR note or any floating rate note for which the interest rate is determined
with reference to LIBOR (the "LIBOR RATE INTEREST DETERMINATION DATE") will be
the second London Business Day immediately preceding the interest reset date
with respect to that note. The interest determination date pertaining to an
interest reset date for an eleventh district cost of funds rate note or any
floating rate note for which the interest rate is determined with reference to
the eleventh district cost of funds rate (the "ELEVENTH DISTRICT COST OF FUNDS
RATE INTEREST DETERMINATION DATE") will be the last working day of the month
immediately preceding the applicable interest reset date on which the Federal
Home Loan Bank of San Francisco publishes the Index (as defined below). The
interest determination date pertaining to an interest reset date for a treasury
rate note or any floating rate note for which the interest rate is determined
with reference to the treasury rate (the "TREASURY RATE INTEREST DETERMINATION
DATE") will be the day of the week on which Treasury bills would
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normally be auctioned in the week in which such interest reset date falls.
Treasury bills are usually sold at auction on Monday of each week, unless that
day is a legal holiday, in which case the auction is usually held on the
following Tuesday, except that such auction may be held on the preceding Friday.
If, as the result of a legal holiday, an auction is so held on the preceding
Friday, that Friday will be the treasury rate interest determination date
pertaining to an interest reset date occurring in the next succeeding week. If
an auction date shall fall on a day which would otherwise be an interest reset
date for a treasury rate note, then such interest reset date shall instead be
the first Business Day immediately following such auction date.
The interest determination date pertaining to a floating rate note the
interest rate of which is determined by reference to two or more interest rate
bases will be the most recent Business Day which is at least two Business Days
prior to the applicable interest reset date for such floating rate note on which
each interest rate basis is determinable. Each interest rate basis will be
determined on that date, and the applicable interest rate will take effect on
the applicable interest reset date.
Unless otherwise specified in the applicable pricing supplement, interest
payable in respect of floating rate notes shall be the accrued interest from and
including the original issue date or the last date to which interest has been
paid, as the case may be, up to but excluding the applicable interest payment
date.
With respect to a floating rate note, accrued interest shall be calculated
by multiplying the principal amount of such note (or, in the case of a floating
rate note that is an indexed principal note, its face amount) by an accrued
interest factor. This accrued interest factor will be computed by adding the
interest factors calculated for each day in the period for which accrued
interest is being calculated. Unless otherwise specified in the applicable
pricing supplement the interest factor (expressed as a decimal calculated to
seven decimal places without rounding) for each such day is computed by dividing
the interest rate in effect on such day by 360, in the case of LIBOR notes,
prime rate notes, commercial paper rate notes, federal funds rate notes,
eleventh district cost of funds rate notes, and CD rate notes, or by the actual
number of days in the year, in the case of CMT rate notes or treasury rate
notes. For purposes of making the foregoing calculation, the interest rate in
effect on any interest reset date will be the applicable rate as reset on such
date.
Unless otherwise specified in the applicable pricing supplement, all
percentages resulting from any calculation of the rate of interest on a floating
rate note will be rounded, if necessary, to the nearest 1/100,000 of 1%
(.0000001), with five one-millionths of a percentage point rounded upward, and
all currency amounts used in or resulting from such calculation on floating rate
notes will be rounded to the nearest one-hundredth of a unit (with .005 of a
unit being rounded upward).
Unless otherwise indicated in the applicable pricing supplement and except
as provided below, interest will be payable, in the case of floating rate notes
that reset daily, weekly or monthly, on the third Wednesday of each month or on
the third Wednesday of March, June, September and December of each year, as
specified in the applicable pricing supplement; in the case of floating rate
notes that reset quarterly, on the third Wednesday of March, June, September,
and December of each year; in the case of floating rate notes that reset
semiannually, on the third Wednesday of each of two months of each year
specified in the applicable pricing supplement; and, in the case of floating
rate notes that reset annually, on the third Wednesday of one month of each year
specified in the applicable pricing supplement (each such day being an "INTEREST
PAYMENT DATE"). If an interest payment date with respect to any floating rate
note would otherwise be a day that is not a Business Day, that interest payment
date shall be postponed to the next succeeding Business Day, except that, in the
case of a LIBOR note, if such Business Day is in the next succeeding calendar
month, such interest payment date shall be the immediately preceding Business
Day.
CD RATE NOTES
Each CD rate note will bear interest for each interest reset period at the
interest rate calculated with reference to the CD rate and the spread or spread
multiplier, if any, and subject to the minimum interest
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rate and the maximum interest rate, if any, specified in such note and in the
applicable pricing supplement.
Unless otherwise specified in the applicable pricing supplement, the "CD
RATE" for each interest reset period will be:
(a) the rate on the CD rate interest determination date for negotiable
certificates of deposit having the index maturity designated in the
applicable pricing supplement as published in H.15(519) under the heading
"CDs (Secondary Market)," or
(b) if the rate referred to in clause (a) above is not published prior
to 3:00 p.m., New York City time, on the calculation date pertaining to
such CD rate interest determination date, then the "CD rate" for such CD
rate interest reset period will be the rate on such CD rate interest
determination date for negotiable U.S. dollar certificates of deposit of
the index maturity specified in the applicable pricing supplement as
published in H.15 Daily Update, or other recognized electronic source used
for the purpose of displaying such rate, or
(c) if the rate referred to in clause (b) is not published by 3:00
p.m., New York City time, on such calculation date, then the "CD rate" for
such interest reset period will be calculated by the calculation agent for
such CD rate note and will be the arithmetic mean of the secondary market
offered rates as of 10:00 a.m., New York City time, on such CD rate
interest determination date of three leading nonbank dealers in negotiable
U.S. dollar certificates of deposit in The City of New York selected by the
calculation agent for such CD rate note for negotiable certificates of
deposit of major U.S. money center banks of the highest credit standing (in
the market for negotiable certificates of deposit) with a remaining
maturity closest to the index maturity designated in the pricing supplement
in an amount that is representative for a single transaction in that market
at that time, or
(d) if the dealers selected as aforesaid by such calculation agent are
not quoting offered rates as mentioned in this sentence, the "CD rate" for
such interest reset period will be the same as the CD rate for the
immediately preceding interest reset period (or, if there was no such
interest reset period, the initial interest rate).
COMMERCIAL PAPER RATE NOTES
Each commercial paper rate note will bear interest for each interest reset
period at the interest rate calculated with reference to the commercial paper
rate and the spread or spread multiplier, if any, specified in that note and in
the applicable pricing supplement.
Unless otherwise specified in the applicable pricing supplement, the
"COMMERCIAL PAPER RATE" for each interest reset period will be determined by the
calculation agent for such commercial paper rate note as of the commercial paper
rate interest determination date and shall be:
(a) The Money Market Yield on such commercial paper rate interest
determination date of the rate for commercial paper having the index
maturity specified in the applicable pricing supplement, as such rate shall
be published in H.15(519) under the heading "Commercial
Paper -- Nonfinancial," or
(b) if the rate referred to in clause (a) is not published prior to
3:00 p.m., New York City time, on the calculation date pertaining to such
commercial paper rate interest determination date, then the "commercial
paper rate" for such interest reset period shall be the Money Market Yield
on such commercial paper rate interest determination date of the rate for
commercial paper of the specified index maturity as published in H.15 Daily
Update, or such other recognized electronic source used for the purpose of
displaying such rate, under the heading "Commercial Paper-Nonfinancial," or
(c) if by 3:00 p.m., New York City time, on such calculation date the
rate referred to in clause (b) is not yet published in either H.15(519) or
H.15 Daily Update or another recognized electronic source used for the
purpose of displaying such rate, then the "commercial paper rate" for such
interest reset period shall be the Money Market Yield of the arithmetic
mean of the offered
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rates, as of 11:00 a.m., New York City time, on such commercial paper rate
interest determination date of three leading dealers of commercial paper in
The City of New York selected by the calculation agent for such commercial
paper rate note for commercial paper of the specified index maturity placed
for an industrial issuer whose bonds are rated "AA" or the equivalent by a
nationally recognized rating agency; provided, however, that if the dealers
selected as aforesaid by such calculation agent are not quoting offered
rates as mentioned in this sentence, the "commercial paper rate" for such
interest reset period will be the same as the commercial paper rate for the
immediately preceding interest reset period (or, if there was no such
interest reset period, the initial interest rate).
"MONEY MARKET YIELD" shall be a yield calculated in accordance with the
following formula:
<TABLE>
<S> <C>
D X 360
-------------
360 - (D X M)
Money Market Yield =
</TABLE>
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
FEDERAL FUNDS RATE NOTES
Each federal funds rate note will bear interest for each interest reset
period at the interest rate calculated with reference to the federal funds rate
and the spread or spread multiplier, if any, specified in such note and in the
applicable pricing supplement.
Unless otherwise specified in the applicable pricing supplement, the
"FEDERAL FUNDS RATE" for each interest reset period shall be:
(a) the effective rate on the federal funds rate interest
determination date for federal funds as published in H.15(519) under the
heading "Federal Funds (Effective)," as such rate is displayed on Bridge
Telerate, Inc. (or any successor service) on page 120 (or any other page as
may replace such page on such service) ("TELERATE PAGE 120"), or
(b) if the rate referred to in clause (a) does not appear on Telerate
Page 120 or is not yet published prior to 3:00 p.m., New York City time, on
the calculation date pertaining to such interest determination date, the
"federal funds rate" for such interest reset period shall be the rate on
such interest determination date as published in H.15 Daily Update, or such
other recognized electronic service used for the purpose of displaying such
rate under the heading "Federal Funds/Effective Rate,", or
(c) if by 3:00 p.m., New York City time, on such calculation date the
rate referred to in clause (b) does not appear on Telerate Page 120 or is
not yet published in either H.15(519) or H.15 Daily Update or such other
recognized electronic source, then the "federal funds rate" for such
interest reset period will be calculated by the calculation agent and will
be the arithmetic mean of the rates prior to 9:00 a.m., New York City time,
on such interest determination date of the last transaction in overnight
federal funds arranged by three leading brokers of federal funds
transactions in The City of New York selected by the calculation agent,
provided, that if the brokers selected by the calculation agent are not
quoting as mentioned in this sentence, the federal funds rate will be the
federal funds rate in effect on such federal funds interest determination
date.
LIBOR NOTES
Each LIBOR note will bear interest for each interest reset period at the
interest rate (calculated with reference to LIBOR and the spread and/or spread
multiplier, if any, and subject to the minimum interest rate and the maximum
interest rate, if any, specified in such note and in the applicable pricing
supplement).
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Unless otherwise specified in the applicable pricing supplement, "LIBOR"
will be determined by the calculation agent in accordance with the following
provisions:
(a) With respect to any interest determination date relating to a
LIBOR note or any floating rate note for which the interest is determined
with reference to LIBOR (a "LIBOR INTEREST DETERMINATION DATE"), LIBOR will
be, as specified, in the applicable pricing supplement, either:
(1) the arithmetic mean of the offered rates for deposits in the
index currency having the index maturity designated in the
applicable pricing supplement, commencing on the second London
Banking Day immediately following that LIBOR interest
determination date, which appear on the Reuters Screen LIBO
Page as of 11:00 a.m., London time, on that LIBOR interest
determination date, if at least two such offered rates appear
on the Reuters Screen LIBO Page, unless such Reuters Screen
LIBO Page by its terms provides only for a single rate, in
which case such single rate shall be used ("LIBOR REUTERS"), or
(2) the rate for deposits in the index currency having the index
maturity designated in the applicable pricing supplement,
commencing on the second London Business Day immediately
following that LIBOR interest determination date, which appears
on the Telerate Page 3750 as of 11:00 a.m., London time, on
that LIBOR interest determination date ("LIBOR TELERATE").
"REUTERS SCREEN LIBO PAGE" means the display designated as page
"LIBO" on the Reuters Monitor Money Rates Service (or such
other page as may replace the LIBO page on that service for the
purpose of displaying London interbank offered rates of major
banks for the applicable index currency). "TELERATE PAGE 3750"
means the display designated as page "3750" on the Dow Jones
Telerate Service (or such other page as may replace the 3750
page on that service or such other service or services as may
be nominated by the British Bankers' Association for the
purpose of displaying London interbank offered rates of major
banks for the applicable index currency). If neither LIBOR
Reuters nor LIBOR Telerate is specified in the applicable
pricing supplement, LIBOR for the applicable index currency
will be determined as if LIBOR Telerate (and, if the U.S.
dollar is the index currency, page 3750) had been specified. If
fewer than two offered rates appear on the Reuters Screen LIBO
Page (unless, as aforesaid, only a single rate is required), or
if no rate appears on the Telerate Page 3750, as applicable,
LIBOR in respect of that LIBOR interest determination date will
be determined as if the parties had specified the rate
described in (b) below.
(b) With respect to a LIBOR interest determination date on which fewer
than two offered rates (unless, as aforesaid, only a single rate is
required) appear on the Reuters Screen LIBO Page, as specified in (a)(1)
above, or on which no rate appears on Telerate Page 3750, as specified in
(a)(2) above, as applicable, LIBOR will be determined on the basis of the
rates at which deposits in the index currency having the index maturity
designated in the applicable pricing supplement are offered at
approximately 11:00 a.m., London time, on that LIBOR interest determination
date by four major banks in the London interbank market selected by the
calculation agent ("REFERENCE BANKS") to prime banks in the London
interbank market, commencing on the second London Banking Day immediately
following that LIBOR interest determination date and in a principal amount
that is representative for a single transaction in such index currency in
such market at such time. The calculation agent will request the principal
London office of each of the reference banks to provide a quotation of its
rate. If at least two such quotations are provided, LIBOR in respect of
that LIBOR interest determination date will be the arithmetic mean of such
quotations. If fewer than two quotations are provided, LIBOR in respect of
that LIBOR interest determination date will be the arithmetic mean of the
rates quoted at approximately 11:00 a.m., in the principal financial center
for the country of the index currency, on the LIBOR interest determination
date by three major banks in such principal financial center (which may
include affiliates of the Agents) selected by the calculation agent for
loans in the index currency to leading European banks, having the index
maturity designed in the applicable
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pricing supplement commencing on the second London Banking Day immediately
following such LIBOR interest determination date and in a principal amount
that is representative for a single transaction in such index currency in
such market at such time; provided, however, that if the banks selected as
aforesaid by the calculation agent are not quoting as mentioned in this
sentence, LIBOR with respect to such LIBOR interest determination date will
be the rate of LIBOR in effect on such LIBOR interest determination date.
"INDEX CURRENCY" means the currency specified in the applicable pricing
supplement as the currency for which LIBOR shall be calculated. If no such
currency is specified in the applicable pricing supplement, the index currency
shall be U.S. dollars.
TREASURY RATE NOTES
Each treasury rate note will bear interest for each interest reset period
at the interest rate calculated with reference to the treasury rate and the
spread or spread multiplier, if any, specified in such note and in the
applicable pricing supplement.
Unless otherwise specified in the applicable pricing supplement, the
"TREASURY RATE" for each interest reset period will be:
(a) the rate from the auction held on the applicable treasury rate
interest determination date (the "AUCTION") of direct obligations of the
United States ("TREASURY BILLS") having the Index Maturity specified in the
applicable pricing supplement under the caption "Investment Rate" on the
display on Bridge Telerate, Inc. or any successor service on page 56 or any
other page as may replace page 56 on that service ("TELERATE PAGE 56") or
page 57 or any other page as may replace page 57 on that service ("TELERATE
PAGE 57"), or
(b) if the rate described in clause (a) is not so published by 3:00
p.m., New York City time, on the related calculation date, the Bond
Equivalent Yield of the rate for the applicable Treasury Bills as published
in H.15 Daily Update, or other recognized electronic source used for the
purpose of displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Auction High," or
(c) if the rate described in clause (b) is not so published by 3:00
p.m., New York City time, on the related calculation date, the Bond
Equivalent Yield of the auction rate of the applicable Treasury Bills
announced by the U.S. Department of the Treasury, or
(d) in the event that the rate referred to in clause (c) is not
announced by the U.S. Department of the Treasury, or if the Auction is not
held, the Bond Equivalent Yield of the rate on the applicable Treasury Rate
interest determination date having the Index Maturity specified in the
applicable pricing supplement published in H.15(519) under the caption
"U.S. Government Securities/Treasury Bills/Secondary Market," or
(e) if the rate referred to in clause (d) is not so published by 3:00
p.m., New York City time, on the related calculation date, the rate on the
applicable Treasury Rate Interest Determination Date as published in H.15
Daily Update, or other recognized electronic source used for the purpose of
displaying the applicable rate, under the caption "U.S. Government
Securities/Treasury Bills/ Secondary Market," or
(f) if the rate referred to in clause (e) is not so published by 3:00
p.m., New York City time, on the related calculation date, the rate on the
applicable Treasury Rate Interest Determination Date calculated by the
calculation agent as the Bond Equivalent Yield of the arithmetic mean of
the secondary market bid rates, as of approximately 3:30 p.m., New York
City time, on the applicable interest determination date, of three primary
U.S. government securities dealers, which may include the agent or its
affiliates, selected by the calculation agent, for the issue of Treasury
Bills with a remaining maturity closest to the index maturity specified in
the applicable pricing supplement, or
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(g) if the dealers selected by the calculation agent are not quoting
as mentioned in clause (f), the rate in effect on the applicable treasury
rate interest determination date.
"BOND EQUIVALENT YIELD" means a yield calculated in accordance with the
following formula and expressed as a percentage:
<TABLE>
<S> <C> <C>
D X N
------------- X 100
360 - (D X M)
Bond Equivalent Yield =
</TABLE>
where "D" refers to the applicable per annum rate for Treasury Bills quoted on a
bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the interest period for which interest is
being calculated.
PRIME RATE NOTES
Each prime rate note will bear interest at the interest rate calculated
with reference to the prime rate and the spread or spread multiplier, if any,
specified in such note and in the applicable pricing supplement.
Unless otherwise specified in the applicable pricing supplement, the "PRIME
RATE" means, with respect to any prime rate interest determination date:
(a) the rate on the applicable prime rate interest determination date
as published in H.15(519) under the heading "Bank Prime Loan," or
(b) if the rate referred to in clause (a) is not so published by 3:00
p.m., New York City time, on the related calculation date, the rate on the
applicable Prime Rate Interest Determination Date published in H.15 Daily
Update, or such other recognized electronic source used for the purpose of
displaying the applicable rate under the caption "Bank Prime Loan," or
(c) if the rate referred to in clause (b) is not so published by 3:00
p.m., New York City time, on the calculation date pertaining to such prime
rate interest determination date, then the prime rate will be determined by
the calculation agent and will be the arithmetic mean of the rates of
interest publicly announced by each bank that appears on the Reuters Screen
USPRIME1 Page as such bank's prime rate or base lending rate as in effect
for that prime rate interest determination date.
"REUTERS SCREEN USPRIME1" means the display designated as page "USPRIME1"
on the Reuters Monitor Money Rates Service (or such other page as may replace
the USPRIME1 page on that service for the purpose of displaying prime rates or
base lending rates of major U.S. banks). If fewer than four such rates but more
than one such rate appear on the Reuters Screen USPRIME1 Page for such prime
rate interest determination date, the prime rate shall be determined by the
calculation agent and will be the arithmetic mean of the prime rates quoted on
the basis of actual number of days in the year divided by 360 as of the close of
business on such prime rate interest determination date by at least three major
money center banks in New York City selected by the calculation agent (after
consulting with us). If the banks selected as aforesaid are not quoting as
mentioned in this sentence, the prime rate will remain the prime rate in effect
on such prime rate interest determination date.
CMT RATE NOTES
CMT rate notes will bear interest at the interest rate (calculated with
reference to the CMT rate and the spread and/or spread multiplier, if any)
specified on the face of the CMT rate note and in the applicable pricing
supplement.
Unless otherwise specified in the applicable pricing supplement, "CMT RATE"
means, with respect to any CMT rate interest determination date:
(a) the rate displayed on the Designated CMT Telerate Page under the
caption ". . . Treasury Constant Maturities . . . Federal Reserve Board
Release H.15. . . . Mondays Approximately 3:45 p.m.," under the column for
the Designated CMT Maturity Index (as defined below) for (1) if the
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Designated CMT Telerate Page is 7051, the rate on such CMT interest
determination date and (2) if the Designated CMT Telerate Page is 7052, the
rate for the week, or the month, as applicable, ended immediately preceding
the week in which the related CMT interest determination date occurs, or
(b), if the rate referred to in clause (a) is no longer displayed on
the relevant page, or if not displayed by 3:00 p.m., New York City time, on
the related interest calculation date, then the CMT rate for such CMT
interest determination date will be such treasury constant maturity rate
for the Designated CMT Maturity Index as published in H.15(519), or
(c) if the rate referred to in clause (b) is no longer published, or
if not published by 3:00 p.m., New York City time, on the related
calculation date, then the CMT rate for such CMT interest determination
date will be such Treasury Constant Maturity Rate for the Designated CMT
Maturity Index (or other U.S. Treasury rate for the Designated CMT Maturity
Index) for the CMT interest determination date with respect to such
interest reset date as may then be published by either the Board of
Governors of the Federal Reserve System or the U.S. Department of the
Treasury that the calculation agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519), or
(d) if the rate referred to in clause (c) is not provided by 3:00
p.m., New York City time, on the related calculation date, then the CMT
rate for the CMT rate interest determination date will be calculated by the
calculation agent and will be a yield to maturity, based on the arithmetic
mean of the secondary market closing offer side prices as of approximately
3:30 p.m., New York City time, on the CMT rate interest determination date
reported, according to their written records, by three leading primary U.S.
government securities dealers (each, a "REFERENCE DEALER") in The City of
New York selected by the calculation agent (from five such reference
dealers selected by the calculation agent and eliminating the highest
quotation (or, in the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest)), for the most
recently issued direct noncallable fixed rate obligations of the United
States ("TREASURY NOTES") with an original maturity of approximately the
Designated CMT Maturity Index and a remaining term to maturity of not less
than such Designated CMT Maturity Index minus one year, or
(e) if the calculation agent cannot obtain three such CMT rate
Treasury note quotations, the CMT rate for such CMT rate interest
determination date will be calculated by the calculation agent and will be
a yield to maturity based on the arithmetic mean of the secondary market
offer side prices as of approximately 3:30 p.m., New York City time, on the
CMT rate interest determination date of three reference dealers in The City
of New York (from five such reference dealers selected by the calculation
agent and eliminating the highest quotation (or, in the event of equality,
one of the highest) and the lowest quotation (or, in the event of equality,
one of the lowest)), for Treasury notes with an original maturity of the
number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT
Maturity Index in an amount of at least $100 million, or
(f), if three or four (and not five) of such reference dealers are
quoting as described above, then the CMT rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest nor
lowest of such quotes will be eliminated, or
(g) if fewer than three reference dealers selected by the calculation
agent are quoting as described herein, the CMT rate will be the CMT rate in
effect on such CMT rate interest determination date. If two Treasury notes
with an original maturity as described in clause (f) have remaining terms
to maturity equally close to the Designated CMT Maturity Index, the quotes
for the treasury rate notes with the shorter remaining term to maturity
will be used.
"DESIGNATED CMT TELERATE PAGE" means the display on the Dow Jones Telerate
Service on the page designated in the applicable pricing supplement (or any
other page as may replace such page on that service for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519)) for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519). If
no such page is specified
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in the applicable pricing supplement, the Designated CMT Telerate Page shall be
7052 for the most recent week.
"DESIGNATED CMT MATURITY INDEX" means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified in the applicable pricing supplement with respect to which the CMT
rate will be calculated. If no such maturity is specified in the applicable
pricing supplement, the Designated CMT Maturity Index shall be 2 years.
ELEVENTH DISTRICT COST OF FUNDS RATE NOTES
Each eleventh district cost of funds rate note will bear interest at
interest rates calculated with reference to the eleventh district cost of funds
rate and the spread or spread multiplier, if any, specified on the face of the
eleventh district cost of funds rate note and in the applicable pricing
supplement.
Unless otherwise specified in the applicable pricing supplement, "ELEVENTH
DISTRICT COST OF FUNDS RATE" means, with respect to any eleventh district cost
of funds rate interest determination date:
(a) the rate equal to the monthly weighted average cost of funds for
the calendar month immediately preceding the month in which such eleventh
district cost of funds rate interest determination date falls, as set forth
under the caption "11th district" on Telerate Page 7058 as of 11:00 a.m.,
San Francisco time, on such eleventh district cost of funds rate interest
determination date, or
(b) if such rate does not appear on Telerate Page 7058 on any related
eleventh district cost of funds rate interest determination date, the
eleventh district cost of funds rate on such eleventh district cost of
funds rate interest determination date shall be the monthly weighted
average cost of funds paid by member institutions of the Eleventh Federal
Home Loan Bank District that was most recently announced (the "INDEX") by
the Federal Home Loan Bank of San Francisco as such cost of funds for the
calendar month immediately preceding the date of such announcement, or
(c) if the Federal Home Loan Bank of San Francisco fails to announce
such rate for the calendar month immediately preceding such eleventh
district cost of funds rate interest determination date, then the eleventh
district cost of funds rate determined as of such eleventh district cost of
funds rate interest determination date shall be the eleventh district cost
of funds rate in effect on such eleventh district cost of funds rate
interest determination date.
"TELERATE PAGE 7058" means the display designated as page "7058" on the
Bridge Telerate Inc. (or such other page as may replace the 7058 page on that
service for the purpose of displaying the monthly weighted average cost of funds
paid by member institutions of the Eleventh Federal Home Loan Bank District).
SUBSEQUENT INTEREST PERIODS
The pricing supplement relating to each note will indicate whether we have
the option to reset the interest rate (in the case of a fixed rate note) with
respect to that note or the spread or spread multiplier (in the case of a
floating rate note) with respect to that note and, if so, the date or dates on
which such interest rate or such spread or spread multiplier, as the case may
be, may be reset (each an "OPTIONAL RESET DATE").
We will notify the Trustee for a note whether or not we intend to exercise
such option with respect to such note at least 45 but not more than 60 calendar
days prior to an optional reset date for such note. Not later than 40 calendar
days prior to such optional reset date, the Trustee for such note will mail to
the holder of such note a notice (the "RESET NOTICE"), first class, postage
prepaid, indicating whether we have elected to reset the interest rate (in the
case of a fixed rate note) or the spread or spread multiplier (in the case of a
floating rate note) and if so, (a) such new interest rate or such new spread or
spread multiplier, as the case may be, and (b) the provisions, if any, for
redemption during the period from such optional reset date to the next optional
reset date or, if there is no such next optional reset date, to the
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stated maturity date of the note (each such period a "SUBSEQUENT INTEREST
PERIOD"), including the date or dates on which or the period or periods during
which and the price or prices at which such redemption may occur during such
subsequent interest period.
Notwithstanding the foregoing, not later than 20 calendar days prior to an
optional reset date for a note, we may, at our option, revoke the interest rate
(in the case of a fixed rate note) or the spread or spread multiplier (in the
case of a floating rate note) provided for in the reset notice with respect to
such optional reset date and establish a higher interest rate (in the case of a
fixed rate note) or a higher spread or spread multiplier (in the case of a
floating rate note) for the subsequent interest period commencing on such
optional reset date by causing the Trustee for such note to mail notice of such
higher interest rate or higher spread or spread multiplier, as the case may be,
first class, postage prepaid, to the holder of such note. Such notice shall be
irrevocable. All notes with respect to which the interest rate or spread or
spread multiplier is reset on an optional reset date will bear such higher
interest rate (in the case of fixed rate notes) or higher spread or spread
multiplier (in the case of floating rate notes), whether or not tendered for
repayment.
The holder of a note will have the option to elect repayment of such note
by us on each optional reset date at a price equal to the principal amount
thereof, plus interest accrued to such optional reset date. In order for a note
to be repaid on an optional reset date, the holder of the note must follow the
procedures set forth below under "Optional Redemption, Repayment and Repurchase"
for optional repayment, except that the period for delivery of such note or
notification to the Trustee for such note shall be at least 25 but not more than
35 calendar days prior to such optional reset date, and except that a holder who
has tendered a note for repayment pursuant to a reset notice may, by written
notice to the Trustee for such note, revoke any such tender for repayment until
the close of business on the tenth day prior to such optional reset date.
INDEXED NOTES
We may from time to time offer notes ("INDEXED NOTES") on which certain or
all interest payments (in the case of an "INDEXED RATE NOTE"), and/or the
principal amount payable at the stated maturity date or earlier redemption or
retirement (in the case of an "INDEXED PRINCIPAL NOTE"), is determined by
reference to the principal amount of such notes (or, in the case of an indexed
principal note, to the amount designated in the applicable pricing supplement as
the "face amount" of such indexed note) and by reference to indices of prices,
changes in prices, or differences between prices, of securities, currencies,
intangibles, goods, articles or commodities, or by such other objective price,
economic or other measures as are described in the applicable pricing
supplement. A description of the index used in any determination of an interest
or principal payment, and the method or formula by which interest or principal
payments will be determined by reference to such index, will be set forth in the
applicable pricing supplement.
In the case of a fixed rate note, floating rate note or indexed rate note
that is also an indexed principal note, the amount of any interest payment will
be determined by reference to the face amount of such indexed note unless
specified otherwise in the applicable pricing supplement. In the case of an
indexed principal note, the principal amount payable at the stated maturity date
or any earlier redemption or repayment of the indexed note may be different from
the face amount.
If the determination of the index on which any interest payment or the
principal amount of an indexed note is calculated or announced by a third party,
which may be Firstar Bank, N.A. or an affiliate of ours, and such third party
either suspends the calculation or announcement of such index or changes the
basis upon which such index is calculated (other than changes consistent with
policies in effect at the time such indexed note was issued and permitted
changes described in the applicable pricing supplement), then such index shall
be calculated for purposes of such indexed note by another third party selected
by us, which may be Firstar Bank, N.A. or another affiliate of ours, subject to
the same conditions and controls as applied to the original third party. If for
any reason such index cannot be calculated on the same basis and subject to the
same conditions and controls as applied to the original third party, then the
indexed interest payments, if any, or any indexed principal amount of such
indexed note, shall be
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calculated in the manner set forth in the applicable pricing supplement. Any
determination of such third party shall in the absence of manifest error be
binding on all parties. See "Risk Factors."
AMORTIZING NOTES
We may from time to time offer amortizing notes ("AMORTIZING NOTES") on
which a portion or all the principal amount is payable prior to its stated
maturity date in accordance with a schedule, by application of a formula, or by
reference to an index. Unless otherwise specified in the applicable pricing
supplement, interest on each amortizing note will be computed on the basis of a
360-day year of twelve 30-day months. Payments with respect to amortizing notes
will be applied first to interest due and payable on the amortizing notes and
then to the reduction of the unpaid principal amount of the amortizing notes.
Further information concerning additional terms and conditions of any amortizing
notes, including terms for repayment thereof, will be set forth in the
applicable pricing supplement.
EXTENSION OF MATURITY
The pricing supplement relating to each note will indicate whether we have
the option to extend the stated maturity date of such note for one or more
periods of whole years from one to five (each an "EXTENSION PERIOD") up to but
not beyond the date (the "FINAL MATURITY") set forth in such pricing supplement.
We may exercise such option with respect to a note by notifying the Trustee
for such note at least 45 but not more than 60 calendar days prior to the old
stated maturity date of the note. Not later than 40 calendar days prior to the
old stated maturity date of such note, the Trustee for such note will mail to
the holder of such note a notice (the "EXTENSION NOTICE"), first class, postage
prepaid. The extension notice will set forth:
- our election to extend the stated maturity date of such note;
- the new stated maturity date;
- in the case of a fixed rate note, the interest rate applicable to the
extension period or, in the case of a floating rate note, the spread or
spread multiplier applicable to the extension period; and
- the provisions, if any, for redemption during the extension period,
including the date or dates on which or the period or periods during
which and the price or prices at which such redemption may occur during
the extension period.
Upon the mailing by the Trustee of an extension notice to the holder of a
note, the stated maturity date of that note shall be extended automatically,
and, except as modified by the extension notice and as described in the next
paragraph, that note will have the same terms as prior to the mailing of such
extension notice.
Notwithstanding the foregoing, not later than 20 calendar days prior to the
old stated maturity date of such note, we may, at our option, revoke the
interest rate (in the case of a fixed rate note) or the spread or spread
multiplier (in the case of a floating rate note) provided for in the extension
notice for such note and establish a higher interest rate (in the case of a
fixed rate note) or a higher spread or spread multiplier (in the case of a
floating rate note) for the extension period, by causing the Trustee for such
note to mail notice of such higher interest rate or higher spread or spread
multiplier, as the case may be, first class, postage prepaid, to the holder of
such note. Such notice shall be irrevocable. All notes with respect to which the
stated maturity date is extended will bear such higher interest rate (in the
case of fixed rate notes) or higher spread or spread multiplier (in the case of
floating rate notes) for the extension period, whether or not tendered for
repayment.
If we extend the stated maturity date of a note, the holder of that note
will have the option to elect repayment of such note by us on the old stated
maturity date at a price equal to the principal amount thereof, plus interest
accrued to such date. In order for a note to be repaid on the old stated
maturity date once we have extended the stated maturity date of that note, the
holder of that note must follow the
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procedures set forth below under "-- Optional Redemption, Repayment and
Repurchase" for optional repayment, except that the period for delivery of such
note or notification to the Trustee shall be at least 25 but not more than 35
days prior to the old stated maturity date, and except that a holder who has
tendered a note for repayment pursuant to an extension notice may, by written
notice to the Trustee, revoke any such tender for repayment until the close of
business on the tenth day before the old stated maturity date.
OPTION REDEMPTION, REPAYMENT AND REPURCHASE
The pricing supplement relating to each note will indicate either that such
note cannot be redeemed prior to its stated maturity date or that such note will
be redeemable at our option, in whole or in part, and the date or dates (each an
"OPTIONAL REDEMPTION DATE") on which such note may be redeemed and the price at
which (together with accrued interest to such optional redemption date) such
note may be redeemed on each such optional redemption date. We may exercise such
option with respect to a note by notifying the Trustee at least 45 days prior to
any optional redemption date.
Unless otherwise specified in the applicable pricing supplement, not more
than 60 days prior to the date of redemption, the Trustee shall mail notice of
such redemption, first class, postage prepaid, to the holder of such note. In
the event of redemption of a note in part only, a new note or notes for the
unredeemed portion thereof shall be issued to the holder thereof upon the
cancellation thereof. The notes will not be subject to any sinking fund.
The pricing supplement relating to each note will also indicate whether the
holder of such note will have the option to elect repayment of such note by us
prior to its stated maturity date, and, if so, such pricing supplement will
specify the date or dates on which such note may be repaid (each an "OPTIONAL
REPAYMENT DATE") and the price at which, together with accrued interest to such
optional repayment date, such note may be repaid on each such optional repayment
date.
In order for a note to be repaid, the Trustee must receive, at least 30 but
not more than 45 days prior to an optional repayment date, (a) such note with
the form entitled "Option to Elect Repayment" on the reverse thereof duly
completed, or (b) a telegram, telex, facsimile transmission or letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States setting forth the name of the holder of such note, the principal amount
of such note to be repaid, the certificate number or a description of the tenor
and terms of such note, a statement that the option to elect repayment is being
exercised thereby and a guarantee that the note to be repaid with the form
entitled "Option to Elect Repayment" on the reverse of the note duly completed
will be received by such Trustee not later than five Business Days after the
date of such telegram, telex, facsimile transmission or letter. If the procedure
described in clause (b) of the preceding sentence is followed, then such note
and form duly completed must be received by the Trustee by such fifth Business
Day. Any tender of a note by the holder for repayment (except pursuant to a
reset notice or an extension notice) shall be irrevocable. The repayment option
may be exercised by the holder of a note for less than the entire principal
amount of such note provided that the principal amount of such note remaining
outstanding after repayment is an authorized denomination. Upon such partial
repayment, such note shall be cancelled and a new note or notes for the
remaining principal amount thereof shall be issued in the name of the holder of
such repaid note.
If a note is represented by a global security, the nominee of the
Depository Trust Company ("DTC") will be the holder of such note and therefore
will be the only entity that can exercise a right to repayment. In order to
ensure that DTC's nominee will timely exercise a right to repayment with respect
to a particular note, the beneficial owner of such note must instruct the broker
or other direct or indirect participant through which it holds an interest in
such note to notify DTC of its desire to exercise a right to repayment.
Different firms have different cut-off times for accepting instructions from
their customers and, accordingly, each beneficial owner should consult the
broker or other direct or indirect participant through which it holds an
interest in a note in order to ascertain the cut-off time by which such an
instruction must be given in order for timely notice to be delivered to DTC.
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Notwithstanding anything in this prospectus supplement to the contrary, if
a note is an original issue discount note (other than an indexed note), the
amount payable on such note in the event of redemption or repayment prior to its
stated maturity date shall be the amortized face amount of such note as of the
date of redemption or the date of repayment, as the case may be. The "amortized
face amount" of a note issued at a discount shall be the amount equal to: (a)
the issue price set forth in the applicable pricing supplement, plus (b) that
portion of the difference between the issue price and the principal amount of
such note that has accrued at the yield to maturity set forth in the pricing
supplement (computed in accordance with generally accepted U.S. bond yield
computation principles) by such date of redemption or repayment, but in no event
shall the amortized face amount of a note issued at a discount exceed its
principal amount.
We may at any time purchase notes at any price in the open market or
otherwise. Notes so purchased by us may, at our discretion, be held or resold or
surrendered to the Trustee for cancellation.
BOOK-ENTRY SYSTEM
Upon issuance, and subject to the rules of DTC, all fixed rate book-entry
notes having the same original issue date and otherwise identical terms will be
represented by a single global security. Each Global Security representing
book-entry notes will be deposited with, or on behalf of, DTC, and registered in
the name of a nominee of DTC. Book-entry notes will not be exchangeable for
certificated notes and will not otherwise be issuable as certificated notes.
DTC has advised us and the Agent as follows: DTC is a limited-purpose trust
company organized under New York Banking Law, a "banking organization" within
the meaning of the New York Banking Law, a member of the Federal Reserve System,
a "clearing corporation" within the meaning of the New York Uniform Commercial
Code, and a "clearing agency" registered pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934, as amended. DTC was created to hold
securities of its participants and to facilitate the clearance and settlement of
securities transactions among its participants in such securities through
electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. DTC's
participants include securities brokers and dealers (including the Agent),
banks, trust companies, clearing corporations, and certain other organizations,
some of whom (and/or their representatives) own DTC. Access to DTC's book-entry
system is also available to others, such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a
participant, either directly or indirectly.
DTC management is aware that some computer applications, systems and the
like for processing data ("SYSTEMS") that are dependent upon calendar dates,
including dates before, on, and after January 1, 2000, may encounter "Year 2000
problems." DTC has informed its participants and other members of the financial
community (the "INDUSTRY") that it has developed and is implementing a program
so that its Systems, as the same relate to the timely payment of distributions
(including principal and income payments) to securityholders, book-entry
deliveries and settlement of trades within DTC ("DTC SERVICES"), continue to
function appropriately. This program includes a technical assessment and a
remediation plan, each of which is complete. Additionally, DTC's plan includes a
testing phase, which is expected to be completed within appropriate time frames.
However, DTC's ability to perform properly its services is also dependent
upon other parties, including but not limited to issuers and their agents, as
well as third party vendors from whom DTC licenses software and hardware, and
third party vendors on whom DTC relies for information or the provision of
services, including telecommunication and electrical utility service providers,
among others. DTC has informed the Industry that it is contacting (and will
continue to contact) third party vendors from whom DTC acquires services to: (a)
impress upon them the importance of such services being Year 2000 compliant, and
(b) determine the extent of their efforts for Year 2000 remediation (and, as
appropriate, testing) of their services. In addition, DTC is in the process of
developing such contingency plans as it deems appropriate. According to DTC, the
foregoing information with respect to DTC has been provided
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to the Industry for informational purposes only and is not intended to serve as
a representation, warranty, or contract modification of any kind.
A further description of DTC's procedures with respect to Global Securities
representing book-entry notes is set forth in the prospectus under "Description
of Debt Securities -- Temporary Global Securities." DTC has confirmed to us, the
Agents and the Trustees that it intends to follow such procedures.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following summary describes certain U.S. federal income tax
consequences of the ownership of notes as of the date hereof. Except where
noted, it deals only with notes held as capital assets and does not deal with
special situations, such as those of dealers in securities or currencies,
traders in securities who elect to use a mark-to-market method of accounting,
financial institutions, life insurance companies, persons holding notes as part
of a hedging or conversion transaction or straddle or U.S. holders (as defined
below) whose "functional currency" is not the U.S. dollar. Moreover, the summary
deals only with notes that are due to mature 30 years or less from the date on
which they are issued. The U.S. federal income tax consequences of ownership of
notes due to mature more than 30 years from their date of issue will be
discussed in the applicable pricing supplement. Furthermore, the discussion
below is based upon the provisions of the Internal Revenue Code of 1986, as
amended (the "CODE"), and regulations, rulings and judicial decisions thereunder
as of the date hereof, and such authorities may be repealed, revoked or modified
so as to result in federal income tax consequences different from those
discussed below. Persons considering the purchase, ownership or disposition of
notes should consult their own tax advisors concerning the federal income tax
consequences in light of their particular situations as well as any consequences
arising under the laws of any other taxing jurisdiction.
U.S. HOLDERS
As used herein, a "U.S. HOLDER" of a note means a holder that is a citizen
or resident of the United States, a corporation or partnership created or
organized in or under the laws of the United States or any political subdivision
thereof, or an estate or trust the income of which is subject to United States
federal income taxation regardless of its source. A trust will be a "U.S.
holder" of a note only if the trust is subject to the primary supervision of a
court within the United States and the control of a United States fiduciary as
described in section 7701(a)(30) of the Code. A "NON-U.S. HOLDER" is a holder
that is not a U.S. holder.
PAYMENTS OF INTEREST
Except as described below, interest on a note will generally be taxable to
a U.S. holder as ordinary income from domestic sources at the time it is paid or
accrued in accordance with the U.S. holder's method of accounting for tax
purposes.
ORIGINAL ISSUE DISCOUNT
The following is a summary of the principal U.S. federal income tax
consequences of the ownership of notes originally issued at a discount by U.S.
holders. The following discussion does not address notes providing for
contingent payments other than notes that bear qualified stated interest.
A note may be issued for an amount that is less than its stated redemption
price at maturity (the sum of all payments to be made on the note other than
"qualified stated interest"). The difference between the stated redemption price
at maturity of the note and its "issue price," if such difference is at least
0.25% of the stated redemption price at maturity multiplied by the number of
complete years to maturity or, in the case of amortizing notes, by the weighted
average maturity, will be "original issue discount" ("OID").
The "issue price" of each note in a particular offering is the first price
at which a substantial amount of that particular offering is sold (other than to
an underwriter, placement agent or wholesaler). "Qualified stated interest" is
stated interest that is unconditionally payable in cash or in property (other
than debt
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instruments of the issuer) at least annually at a single fixed rate or, subject
to certain conditions, based on one or more interest indices. Interest is
payable at a single fixed rate only if the rate appropriately takes into account
the length of the interval between payments.
In the case of a note issued with de minimis OID (i.e., discount that is
not treated as OID because it is less than 0.25 percent of the stated redemption
price at maturity multiplied by the number of complete years to maturity or, in
the case of amortizing notes, by the weighted average maturity), the U.S. holder
generally must include such de minimis OID in income as capital gain as stated
principal payments on the notes are made in proportion to the stated principal
amount of the note.
Certain notes may be redeemed or repaid prior to their stated maturity date
at the option of Firstar and/or at the option of the holder. Notes originally
issued at a discount and containing such features may be subject to rules that
differ from the general rules discussed herein. Persons considering the purchase
of notes originally issued at a discount with such features should carefully
examine the applicable pricing supplement and should consult their own tax
advisors with respect to such features since the tax consequences with respect
to OID will depend, in part, on the particular terms and features of the notes.
U.S. holders of notes originally issued at a discount with a maturity upon
issuance of more than one year must, in general, include OID in income in
advance of the receipt of some or all of the related cash payments. The amount
of OID includible in income by the initial U.S. holder of a note originally
issued at a discount is the sum of the "daily portions" of OID with respect to
the note for each day during the taxable year or portion of the taxable year in
which such U.S. holder held such note ("ACCRUED OID"). The daily portion is
determined by allocating to each day in any "accrual period" a pro rata portion
of the OID allocable to that accrual period. The "accrual period" for a note
originally issued at a discount may be of any length and may vary in length over
the term of the note, provided that each accrual period is no longer than one
year and each scheduled payment of principal or interest occurs on the first day
or the final day of an accrual period. The amount of OID that will be allocated
to any accrual period is an amount equal to the excess, if any, of: the product
of the note's adjusted issue price at the beginning of such accrual period and
its yield to maturity (determined on the basis of compounding at the close of
each accrual period and properly adjusted for the length of the accrual period)
over; the sum of any qualified stated interest allocable to the accrual period.
OID that will be allocated to a final accrual period is the difference between
the amount payable at maturity (other than a payment of qualified stated
interest) and the adjusted issue price at the beginning of the final accrual
period. Special rules will apply for calculating OID for an initial short
accrual period. The "adjusted issue price" of a note at the beginning of any
accrual period is equal to its issue price increased by the accrued OID for each
prior accrual period (determined without regard to the amortization of any
acquisition or bond premium, as described below) and reduced by any payments
(other than qualified stated interest) made with respect to such note on or
before the first day of the accrual period. Under these rules, a U.S. holder
will have to include in income increasingly greater amounts of OID in successive
accrual periods. We are required to provide information returns stating the
amount of OID accrued on notes held of record by persons other than corporations
and other exempt holders.
In the case of a note that is originally issued at a discount that is a
floating rate note, both the "yield to maturity" and "qualified stated interest"
will be determined solely for purposes of calculating the accrual of OID as
though the note will bear interest in all periods at a fixed rate generally
equal to the rate that would be applicable to interest payments on the note on
its date of issue or, in the case of certain floating rate notes, the rate that
reflects the yield to maturity that is reasonably expected for the note.
Additional rules may apply if interest on a floating rate note is based on more
than one interest index. Persons considering the purchase of floating rate notes
should carefully examine the applicable pricing supplement and should consult
their own tax advisors regarding the United States federal income tax
consequences of the holding and disposition of such notes.
U.S. holders may elect to treat all interest on any note as OID and
calculate the amount includible in gross income under the constant yield method
described above. For the purposes of this election, interest includes stated
interest, acquisition discount, OID, de minimis OID, market discount, de minimis
market
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discount and unstated interest, as adjusted by any amortizable bond premium or
acquisition premium. A U.S. holder must choose the treatment for the taxable
year in which the U.S. holder acquired the note, and may not be revoked without
the consent of the Internal Revenue Service. U.S. holders should consult with
their own tax advisors about this election.
SHORT-TERM NOTES
In the case of notes originally issued at a discount and having a term of
one year or less ("SHORT-TERM ORIGINAL ISSUE DISCOUNT NOTES"), all payments
(including all stated interest) will be included in the stated redemption price
at maturity and, thus, U.S. holders will generally be taxable on the discount in
lieu of stated interest. The discount will be equal to the excess of the stated
redemption price at maturity over the issue price of a short-term original issue
discount note, unless the U.S. holder elects to compute this discount using tax
basis instead of issue price. An election to compute this discount using tax
basis will apply to all obligations acquired by the holder in or after the first
taxable year to which the election applies and may not be revoked without the
consent of the Internal Revenue Service. In general, individuals and certain
other cash method U.S. holders of short-term original issue discount notes are
not required to include accrued discount in their income currently unless they
elect to do so. U.S. holders who report income for federal income tax purposes
on the accrual method and certain other U.S. holders are required to accrue
discount on such short-term original issue discount notes (as ordinary income)
on a straight-line basis, unless an election is made to accrue the discount
according to a constant yield method based on daily compounding. In the case of
a U.S. holder who is not required, and does not elect, to include discount in
income currently, any gain realized on the sale, exchange or retirement of the
short-term original issue discount note will be ordinary income to the extent of
the discount accrued through the date of sale, exchange or retirement. In
addition, a U.S. holder who is not required, and does not elect, to include
accrued discount in income currently may be required to defer deductions for all
or a portion of the U.S. holder's interest expense with respect to any
indebtedness incurred or continued to purchase or carry such notes.
MARKET DISCOUNT
If a U.S. holder purchases a note other than an original issue discount
note for an amount that is less than its stated redemption price at maturity, or
an original issue discount note for an amount that is less than its "revised
issue price" (defined as the sum of the issue price of the note and the
aggregate amount of the OID includible, if any, without regard to the rules for
acquisition premium discussed below, in the gross income of all previous holders
of the note), the amount of the difference will be treated as "market discount"
for U.S. federal income tax purposes, unless such difference is less than a
specified de minimis amount. Under the market discount rules, a U.S. holder will
be required to treat any principal payment on, or any gain on the sale,
exchange, retirement or other disposition of, a note as ordinary income to the
extent of the market discount which has not previously been included in income
and is treated as having accrued on such note at the time of such payment or
disposition. In addition, the U.S. holder may be required to defer, until the
maturity of the note or its earlier disposition in a taxable transaction, the
deduction of all or a portion of the interest expense on any indebtedness
incurred or continued to purchase or carry such note.
Any market discount will be considered to accrue ratably during the period
from the date of acquisition to the stated maturity date of the note, unless the
U.S. holder elects to accrue on a constant interest rate method. A U.S. holder
of a note may elect to include market discount in income currently as it accrues
(on either a ratable or constant interest rate basis), in which case the rules
described above regarding the deferral of interest deductions and the treatment
of principal payments on, or gain on the sale, exchange, retirement or other
disposition of, a note will not apply. This election to include market discount
in income currently, once made, applies to all market discount obligations
acquired in or after the first taxable year to which the election applies, and
may not be revoked without the consent of the IRS.
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ACQUISITION PREMIUM; AMORTIZABLE BOND PREMIUM
A U.S. holder who purchases a note for an amount that is greater than its
adjusted issue price, but equal to or less than the sum of all amounts payable
on the note after the purchase date (other than payments of qualified stated
interest), will be considered to have purchased such note at an "acquisition
premium." Under the acquisition premium rules, the amount of OID which such
holder must include in its gross income with respect to such note for any
taxable year will be reduced by the portion of such acquisition premium properly
allocable to such year.
A U.S. holder who purchases a note for an amount in excess of the sum of
all amounts payable on the note after the purchase date (other than payments of
qualified stated interest) will be considered to have purchased the note at a
"premium" and will not be required to include any OID in income. A U.S. holder
generally may elect to amortize the premium over the remaining term of the note
on a constant yield method. The amount amortized in any year will be treated as
a reduction of the U.S. holder's interest income from the note. Bond premium on
a note held by a U.S. holder that does not make such an election will decrease
the gain or increase the loss otherwise recognized on disposition of the note.
The election to amortize premium on a constant yield method once made applies to
all debt obligations held or subsequently acquired by the electing U.S. holder
on or after the first day of the first taxable year to which the election
applies and may not be revoked without the consent of the Internal Revenue
Service.
SALE, EXCHANGE AND RETIREMENT OF NOTES
A U.S. holder's tax basis in a note will, in general, be the U.S. holder's
cost therefor, increased by OID, market discount or any discount with respect to
a short-term original issue discount note, previously included in income by the
U.S. holder and reduced by any amortized premium and any cash payments on the
note other than qualified stated interest. Upon the sale, exchange or retirement
of a note, a U.S. holder will recognize gain or loss equal to the difference
between the amount realized upon the sale, exchange or retirement (less any
accrued but unpaid qualified stated interest) and the adjusted tax basis of the
note. Except as described above with respect to certain short-term original
issue discount notes or with respect to market discount, such gain or loss will
be capital gain or loss and will be long-term capital gain or loss if at the
time of sale, exchange or retirement the note has been held for more than one
year. Under current law, net capital gains of individuals are, under certain
circumstances, taxed at lower rates than items of ordinary income. The
deductibility of capital losses is subject to limitations.
EXTENSION OF MATURITY, OPTIONAL REDEMPTION AND OPTIONAL REPAYMENT
If so specified in an applicable pricing supplement relating to a note, we
may have the option to extend the maturity of a note. See "Description of
Notes -- Extension of Maturity." The treatment of a U.S. holder of notes with
respect to which such an option has been exercised may depend, in part, on the
terms established for such notes by Firstar pursuant to the exercise of such
option (the "REVISED TERMS"). Such U.S. holder may be treated for United States
federal income tax purposes as having exchanged such notes (the "OLD NOTES") for
new notes with the revised terms (the "NEW NOTES"). If the exercise of the
option by us is not treated as an exchange of old notes for new notes, no gain
or loss will be recognized by a U.S. holder as a result thereof. If the exercise
of the option is treated as a taxable exchange of old notes for new notes, a
U.S. holder would generally recognize gain or loss equal to the difference
between the issue price of the new notes and the holder's tax basis in the old
notes.
If so specified in an applicable pricing supplement relating to a note, we
may have the right to redeem the note prior to its stated maturity date, and the
holder may have the right to elect repayment of the note prior to its stated
maturity date. See "Description of Notes -- Optional Redemption, Repayment and
Repurchase."
The presence of such options may also affect the calculation of OID, among
other things. The OID Regulations provide that, solely for purposes of the
accrual of OID, an issuer of a debt instrument having an option or combination
of options to extend the term of the debt instrument or to redeem the debt
instrument prior to its stated maturity date will be presumed to exercise such
option or options in the
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manner that minimizes the yield on the debt instrument. Conversely, a holder
having an option to elect repayment of the debt instrument prior to its stated
maturity date or a combination of such options will be presumed to exercise such
option or options in a manner that maximizes the yield on the debt instrument.
If the exercise of such option or options to extend the term of the debt
instrument, to redeem the debt instrument prior to its stated maturity date or
to elect repayment of the debt instrument prior to its stated maturity date
actually occurs or does not occur, contrary to the presumption made under the
OID Regulations (a "CHANGE OF CIRCUMSTANCES"), then, solely for purposes of the
accrual of OID, the debt instrument is treated as reissued on the date of the
change in circumstances for an amount equal to its adjusted issue price on that
date. Persons considering the purchase of notes involving an option of Firstar
to extend the stated maturity date of the notes or to redeem the notes prior to
their stated maturity date or an option of a holder to elect repayment of a note
prior to its stated maturity date should carefully examine the applicable
pricing supplement and should consult their own tax advisors regarding the
United States federal income tax consequences of the holding and disposition of
such notes.
FOREIGN CURRENCY NOTES
The following is a summary of the principal U.S. federal income tax
consequences to a U.S. holder of the ownership of a note (a "FOREIGN CURRENCY
NOTE") denominated in a specified currency other than the U.S. dollar (a
"FOREIGN CURRENCY"). If interest payments are made in a foreign currency to a
U.S. holder that is not required to accrue such interest prior to its receipt,
such holder will be required to include in income the U.S. dollar value of the
amount received (determined by translating the foreign currency received at the
"spot rate" for such foreign currency on the date such payment is received),
regardless of whether the payment is in fact converted into U.S. dollars. No
separate exchange gain or loss is recognized with respect to the receipt of such
payment, except to the extent that such gain or loss arises on the actual
disposition of the foreign currency involved.
A U.S. holder that is required or elects to accrue interest on a foreign
currency note prior to the receipt of such interest will be required to include
in income for each taxable year the U.S. dollar value of the interest that has
accrued during such year, determined by translating such interest at the average
rate of exchange for the period or periods during which such interest accrued.
The average rate of exchange for an interest accrual period is the simple
average of the exchange rates for each business day of such period (or such
other average that is reasonably derived and consistently applied by the
holder). A U.S. holder may elect to translate interest income at the spot rate
on the last day of the accrual period (or last day of the taxable year in the
case of an accrual period that straddles the holder's taxable year) or on the
date the interest payment is received if such date is within five days of the
end of the accrual period. Upon receipt of an interest payment on such note,
such holder will recognize ordinary income or loss in an amount equal to the
difference between the U.S. dollar value of such payment (determined by
translating any foreign currency received at the "spot rate" for such foreign
currency on the date received) and the U.S. dollar value of the interest income
that such holder has previously included in income with respect to such payment.
OID on a note that is also a foreign currency note will be determined for
any accrual period in the applicable foreign currency and then translated into
U.S. dollars in the same manner as interest income accrued by a holder on the
accrual basis, as described above. Likewise, a U.S. holder will recognize
exchange gain or loss when the OID is paid to the extent of the difference
between the U.S. dollar value of the accrued OID (determined in the same manner
as for accrued interest) and the U.S. dollar value of such payment (determined
by translating any foreign currency received at the spot rate for such foreign
currency on the date of payment). For this purpose, all receipts on a note will
be viewed first as the receipt of any stated interest payments called for under
the terms of the note, second as receipts of previously accrued OID (to the
extent thereof), with payments considered made for the earliest accrual periods
first, and thereafter as the receipt of principal.
The amount of market discount on foreign currency notes includible in
income will generally be determined by translating the market discount
determined in the foreign currency into U.S. dollars at the spot rate on the
date the foreign currency note is retired or otherwise disposed of. If the U.S.
holder has
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elected to accrue market discount currently, then the amount which accrues is
determined in the foreign currency and then translated into U.S. dollars on the
basis of the average exchange rate in effect during such accrual period. A U.S.
holder will recognize exchange gain or loss with respect to market discount
which is accrued currently using the approach applicable to the accrual of
interest income as described above.
Bond premium on a foreign currency note will be computed in the applicable
foreign currency. With respect to a U.S. holder that elects to amortize the
premium, the amortizable bond premium will reduce interest income in the
applicable foreign currency. At the time bond premium is amortized, exchange
gain or loss (which is generally ordinary income or loss) will be realized based
on the difference between spot rates at such times and at the time of
acquisition of the foreign currency note. A U.S. holder that does not elect to
amortize bond premium will translate the bond premium, computed in the
applicable foreign currency, into U.S. dollars at the spot rate on the maturity
date and such bond premium will constitute a capital loss which may be offset or
eliminated by exchange gain.
A U.S. holder's tax basis in a foreign currency note will be the U.S.
dollar value of the foreign currency amount paid for such foreign currency note
determined at the time of such purchase (or, as discussed below, determined on
the settlement date for such purchase in the case of a publicly-traded foreign
currency note). A U.S. holder that purchases a note with previously owned
foreign currency will recognize exchange gain or loss at the time of purchase
attributable to the difference at the time of purchase, if any, between his tax
basis in such foreign currency and the fair market value of the note in U.S.
dollars on the date of purchase (or settlement). Such gain or loss will be
ordinary income or loss.
For purposes of determining the amount of any gain or loss recognized by a
U.S. holder on the sale, exchange, retirement or other disposition of a foreign
currency note, the amount realized upon such sale, exchange, retirement or other
disposition will be the U.S. dollar value of the amount realized in foreign
currency (other than amounts attributable to accrued but unpaid interest not
previously included in the holder's income), determined at the time of the sale,
exchange, retirement or other disposition.
A U.S. holder will recognize exchange gain or loss attributable to the
movement in exchange rates between the time of purchase and the time of
disposition (including the sale, exchange, retirement or other disposition) of a
foreign currency note. Such gain or loss will be treated as ordinary income or
loss. The realization of such gain or loss will be limited to the amount of
overall gain or loss realized on the disposition of a foreign currency note.
A U.S. holder's tax basis in foreign currency received as interest on (or
OID with respect to), or received on the sale, exchange, retirement or other
disposition of, a foreign currency note will be the U.S. dollar value thereof at
the spot rate at the time the holder received such foreign currency. Regulations
issued under Section 988 of the Code provide a special rule for purchases and
sales of publicly-traded foreign currency notes by a cash method taxpayer, under
which units of foreign currency paid or received are translated into dollars at
the spot rate on the settlement date of the purchase or sale. Accordingly, no
foreign currency gain or loss will result from currency fluctuations between the
trade date and the settlement date of such a purchase or sale. An accrual method
taxpayer may elect the same treatment required of cash method taxpayers with
respect to the purchase and sale of publicly-traded foreign currency notes,
provided that the election is applied consistently. Such election cannot be
changed without the consent of the IRS. Any gain or loss recognized by a U.S.
holder on a sale, exchange or other disposition of foreign currency will be
ordinary income or loss and will not be treated as interest income or expense,
except to the extent provided in regulations promulgated by the U.S. Department
of the Treasury or administrative pronouncements of the IRS.
INDEXED NOTES
The tax treatment of a U.S. holder of an indexed note will depend on
factors including the specific index or indices used to determine indexed
payments on the note and the amount and timing of any contingent payments of
principal and interest. Persons considering the purchase of indexed notes should
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carefully examine the applicable pricing supplement and should consult their own
tax advisors regarding the U.S. federal income tax consequences of the holding
and disposition of such notes.
NON-U.S. HOLDERS
Under present U.S. federal income and estate tax law, and subject to the
discussion below concerning backup withholding:
(a) no withholding of U.S. federal income tax will be required with
respect to the payment by us or any paying agent (in its capacity as such)
of principal, premium (if any) or interest (which for purposes of this
discussion includes OID) on a note owned by a Non-U.S. holder, provided
that
(1) such Non-U.S. holder does not actually or constructively own
10% or more of the total combined voting power of all of our classes of
stock entitled to vote within the meaning of section 871(h)(3) of the
Code and the regulations thereunder,
(2) such Non-U.S. holder is not a controlled foreign corporation
that is related to us through stock ownership,
(3) such Non-U.S. holder is not a bank whose receipt of interest on
a note is described in section 881(c)(3)(A) of the Code,
(4) the statement described below has been provided by or with
respect to the beneficial owner and
(5) such interest is not contingent interest within the meaning of
section 871(h)(4)(A) of the Code and the regulations thereunder;
(b) no withholding of U.S. federal income tax will be required with
respect to any gain or income realized by a Non-U.S. holder upon the sale,
exchange or retirement of a note; and
(c) a note beneficially owned by an individual who at the time of
death is a Non-U.S. holder will not be subject to U.S. federal estate tax
as a result of such individual's death, provided that such individual does
not actually or constructively own 10% or more of the total combined voting
power of all of our classes of stock entitled to vote within the meaning of
section 871(h)(3) of the Code and provided that the interest payments with
respect to such note would not have been, if received at the time of such
individual's death, effectively connected with the conduct of a U.S. trade
or business by such individual.
To qualify for the exemption from withholding tax referred to in (a) above,
the beneficial owner of such note, or a financial institution holding the note
on behalf of such owner, must provide, in accordance with specified procedures,
a paying agent of ours with a statement to the effect that the beneficial owner
is not a U.S. person, citizen or resident. Pursuant to current temporary
Treasury Regulations, which generally apply to payments on a note on or before
December 31, 1999, these requirements will be met if (1) the beneficial owner
provides his name and address, and certifies, under penalties of perjury, that
he is not a U.S. person, citizen or resident (which certification may be made on
an Internal Revenue Service Form W-8 (or successor form)) or (2) a financial
institution holding the note on behalf of the beneficial owner certifies, under
penalties of perjury, that such statement has been received by it and furnishes
a paying agent with a copy thereof. On October 6, 1997, the Treasury Department
issued final regulations relating to withholding tax, information reporting and
backup withholding that unify current certification procedures and forms and
clarify reliance standards (the "FINAL REGULATIONS"). The Final Regulation,
which generally apply to payments on a note after December 31, 1999, provide
alternative methods for satisfying the certification requirement described
above.
Payments of premium, if any, and interest (including OID) to Non-U.S.
holders not meeting the requirements of paragraph (a) above will be subject to a
30% withholding unless the beneficial owner of the note provides us with a
properly executed (1) Internal Revenue Service Form 1001 (or successor form)
claiming an exemption from or reduction in withholding under the benefit of a
tax treaty or
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(2) Internal Revenue Service Form 4224 (or successor form) stating that interest
paid on the note is not subject to withholding tax because it is effectively
connected with the owner's conduct of a trade or business in the United States.
If a Non-U.S. holder is engaged in a trade or business in the United States
and premium, if any, or interest (including OID) on the note is effectively
connected with the conduct of such trade or business, the Non-U.S. holder,
although exempt from the withholding tax discussed above, will be subject to
U.S. federal income tax on such interest and OID on a net income basis in the
same manner as if it were a U.S. holder. In addition, if such holder is a
foreign corporation, it may be subject to a branch profits tax equal to 30% of
its effectively connected earnings and profits for the taxable year, subject to
adjustments. For this purpose, such premium, if any, and interest (including
OID) on a note will be included in such foreign corporation's earnings and
profits.
Any gain or income realized upon the sale, exchange, retirement or other
disposition of a note generally will not be subject to U.S. federal income tax
unless (a) such gain or income is effectively connected with a trade or business
in the United States of the Non-U.S. holder, or (b) in the case of a Non-U.S.
holder who is an individual, such individual is present in the United States for
183 days or more in the taxable year of such sale, exchange, retirement or other
disposition, and certain other conditions are met.
BACKUP WITHHOLDING AND INFORMATION REPORTING
In general, information reporting requirements will apply to certain
payments of principal, interest, OID and premium paid on notes and to the
proceeds of a sale of a note made to U.S. holders other than certain exempt
recipients (such as corporations). Backup withholding at a 31% rate will apply
to such payments if the U.S. holder fails to provide a taxpayer identification
number or certification of foreign or other exempt status or fails to report in
full dividend and interest income.
No information reporting or backup withholding will be required with
respect to payments made by us or any paying agent to Non-U.S. holders if a
statement described in (a)(4) under "-- Non-U.S. holders" has been received and
the payor does not have actual knowledge (and, with respect to payments made
after December 31, 1999, does not have reason to know) that the beneficial owner
is a U.S. person.
In addition, backup withholding and information reporting will not apply if
payments of the principal, interest, OID or premium on a note is paid or
collected by a foreign office of a custodian, nominee or other foreign agent on
behalf of the beneficial owner of such note, or if a foreign office of a broker
(as defined in applicable Treasury Regulations) pays the proceeds of the sale of
a note to the owner thereof. If, however, such nominee, custodian, agent or
broker is, for U.S. federal income tax purposes, a U.S. person, a controlled
foreign corporation, a foreign person that derives 50% or more of its gross
income for certain periods from the conduct of a trade or business in the United
States, or, in the case of payments made after December 31, 1999, a foreign
partnership at least 50 percent of the capital or profits interests of which are
owned by U.S. persons or that is engaged in the conduct of a United States trade
or business. Such payment will not be subject to backup withholding but may be
subject to information reporting.
Payments of principal, interest, OID and premium on a note paid to the
beneficial owner of a note by a U.S. office of a custodian, nominee or agent, or
the payment by the U.S. office of a broker of the proceeds of sale of a note,
will be subject to both backup withholding and information reporting unless the
beneficial owner provides a statement described in (a)(4) above and the payor
does not have actual knowledge that the beneficial owner is a U.S. person (and,
with respect to payments made after December 31, 1999, does not have reason to
know) or the beneficial owner otherwise establishes an exemption.
Any amounts withheld under the backup withholding rules will be allowed as
a refund or a credit against such holder's U.S. federal income tax liability
provided the required information is furnished to the IRS.
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PLAN OF DISTRIBUTION
We are offering the notes for sale on a continuing basis through Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith and (our "AGENTS"), who will
purchase the notes, as principal, from us, for resale to investors and other
purchasers at varying prices relating to prevailing market prices at the time of
resale as determined by the Agents, or, if so specified in an applicable pricing
supplement, for resale at a fixed public offering price. Unless otherwise
specified in an applicable pricing supplement, any note sold to the agent as
principal will be purchased by the Agents at a price equal to 100% of the
principal amount of the note less a percentage of the principal amount equal to
the commission applicable to an agency sale as described below of a note of
identical maturity. If agreed to by us and the Agents, the Agents may utilize
their reasonable efforts on an agency basis to solicit offers to purchase the
notes at 100% of the principal amount of the notes, unless otherwise specified
in an applicable pricing supplement. We will pay a commission to the Agents,
ranging from to % of the principal amount of a note,
depending upon its stated maturity or, with respect to a Note for which the
stated maturity is in excess of 30 years, a commission as agreed upon by us and
the Agents at the time of sale.
The Agents may sell notes they have purchased from us as principal to other
dealers for resale to investors, and may allow any portion of the discount
received in connection with such purchases from us to such dealers. After the
initial public offering of notes, the public offering price, in the case of
notes to be resold at a fixed public offering price, the concession and the
discount allowed to dealers may be changed.
We reserve the right to withdraw, cancel or modify the offer made by this
prospectus supplement without notice and may reject orders, in whole or in part,
whether placed directly with us or through the Agents. The Agents will have the
right, in their discretion reasonably exercised, to reject in whole or in part
any offer to purchase notes received by the Agents. Unless otherwise specified
in an applicable pricing supplement, payment of the purchase price of the notes
will be required to be made in immediately available funds in U.S. dollars or
such other specified currency, as the case may be, in New York City on the date
of settlement. No note will have an established trading market when issued.
Unless specified in the applicable pricing supplement, we will not list the
notes on any securities exchange. The Agents may from time to time purchase and
sell notes in the secondary market, but the Agents are not obligated to do so,
and there can be no assurance that there will be a secondary market for the
notes or liquidity in the secondary market if one develops. From time to time,
the Agents may make a market in the notes.
The Agents may be deemed to be "underwriters" within the meaning of the
Securities Act. We have agreed to indemnify the Agents against or to make
contributions relating to certain civil liabilities, including liabilities under
the Securities Act, or to contribute to payments the Agents may be required to
make in respect thereof. We have agreed to reimburse the Agents for certain
expenses.
From time to time, we may issue and sell other securities described in the
accompanying prospectus, and the amount of notes that we may offer and sell
under this prospectus supplement may be reduced as a result of such sales.
In connection with the offering of notes purchased by the Agents as
principal on a fixed price basis, the Agents are permitted to engage in certain
transactions that stabilize the price of the notes. These transactions may
consist of bids or purchases for the purpose of pegging, fixing or maintaining
the price of the notes. If the Agents create a short position in the notes in
connection with the offering, i.e., if they sell notes in an aggregate principal
amount exceeding that set forth in the applicable pricing supplement, then the
Agents may reduce that short position by purchasing notes in the open market. In
general, purchases of notes for the purpose of stabilization or to reduce a
short position could cause the price of the notes to be higher than in the
absence of these purchases.
Neither we nor the Agents make any representation or prediction as to the
direction or magnitude of any effect that the transactions described above may
have on the price of the notes. In addition, neither we nor the Agents make any
representation that the Agents will engage in any such transactions or that such
transactions, once commenced, will not be discontinued without notice.
The distribution of the notes will conform to the requirements set forth in
the applicable sections of Rule 2720 of the Conduct Rules of the NASD.
S-31
<PAGE> 33
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION
DATED JUNE 23, 1999
FIRSTAR CORPORATION
[FIRSTAR LOGO]
$1,000,000,000
DEBT SECURITIES AND DEBT WARRANTS
PREFERRED SHARES AND PREFERRED SHARE WARRANTS
DEPOSITARY SHARES
COMMON STOCK AND COMMON STOCK WARRANTS
UNITS
----------------------
We may offer and sell from time to time:
- debt securities;
- warrants to purchase debt securities;
- preferred shares;
- warrants to purchase preferred shares;
- fractions of preferred shares represented by depositary receipts;
- common stock;
- warrants to purchase common stock; and
- units consisting of one or more of these securities.
We will provide the specific terms of each series or issue of securities we
issue in supplements to this prospectus. You should read this prospectus and the
supplements carefully before you invest. We may only use this prospectus to
offer and sell our securities if it is accompanied by a prospectus supplement.
We may offer the securities directly or through underwriters, agents or
dealers. The applicable prospectus supplement will designate the terms of that
plan of distribution.
OUR DEBT SECURITIES ARE OUR UNSECURED OBLIGATIONS AND ARE NOT SAVINGS
ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY OF OUR BANKS OR NONBANK
SUBSIDIARIES. OUR DEBT SECURITIES ARE NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER GOVERNMENTAL AGENCY.
THIS PROSPECTUS MAY NOT BE USED TO SELL SECURITIES UNLESS ACCOMPANIED BY A
PROSPECTUS SUPPLEMENT.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT IS TRUTHFUL OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS , 1999.
<PAGE> 34
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Firstar..................................................... 2
Where You Can Find More Information......................... 2
Use of Proceeds............................................. 4
Ratios of Earnings to Fixed Charges and to Combined Fixed
Charges and Preferred Stock Dividends..................... 4
Certain Regulatory Matters.................................. 5
Description of Debt Securities.............................. 10
Description of Preferred Shares............................. 22
Description of Depositary Shares............................ 27
Description of Common Stock................................. 30
Description of Securities Warrants.......................... 31
European Monetary Union..................................... 35
Plan of Distribution........................................ 36
Validity of Securities...................................... 36
Experts..................................................... 36
Forward-Looking Statements.................................. 37
</TABLE>
1
<PAGE> 35
FIRSTAR
Firstar Corporation ("FIRSTAR") is the organization created by the merger
of Star Banc Corporation and Firstar Corporation ("OLD FIRSTAR CORPORATION") on
November 20, 1998. We are a regional, multi-state bank holding company
headquartered in Milwaukee, Wisconsin. We own 100 percent of the capital stock
of eight bank subsidiaries having over 700 banking offices in Wisconsin, Ohio,
Iowa, Minnesota, Illinois, Indiana, Kentucky, Tennessee and Arizona. We also own
various nonbank and limited purpose bank subsidiaries engaged in related
financial services.
We provide banking services throughout the midwestern United States. All of
our banking subsidiaries other than Firstar Bank, N.A. were part of old Firstar
Corporation. Our banks provide a broad range of financial services for companies
based in its market region, national business organizations, governmental
entities and individuals. These commercial and consumer banking activities
include accepting demand, time and savings deposits; making both secured and
unsecured business and personal loans; and issuing and servicing credit cards.
Our banks also engage in correspondent banking and provide a full range of trust
and investment management services to individual and corporate customers. We
also provide international banking services consisting of foreign trade
financing, issuance and confirmation of letters of credit, funds collection and
foreign exchange transactions. Our nonbank subsidiaries provide retail brokerage
services, trust and investment management services, residential mortgage
banking, consumer financing, title insurance, business insurance, consumer and
credit related insurance, and corporate operational services.
Our operations include three primary business segments: consumer banking,
wholesale banking, and trust and private banking.
Our principal executive offices are located at 777 East Wisconsin Avenue,
Milwaukee, Wisconsin 53202, and the telephone number is (414) 765-4321.
Additional information about Firstar is included in the documents
incorporated by reference in this document. See "Where You Can Find More
Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission (the "COMMISSION"). Our
Commission filings are available to the public over the internet at the
Commission's web site at http://www.sec.gov. You may also read and copy any
document we file at the Commission's public reference rooms in Washington, D.C.,
New York, New York and Chicago, Illinois. Please call the Commission at
1-800-SEC-0330 for further information on the public reference rooms and their
copy charges. Our common stock, par value $.01 per share ("COMMON STOCK") is
listed on the New York Stock Exchange, Inc. (the "NYSE"). You can obtain
information about us from the NYSE at 20 Broad Street, New York, New York 10005.
The Commission allows us to "incorporate by reference" the information we
file with the Commission, which means that we can disclose important information
to you by referring you to those documents. The information incorporated by
reference is an important part of this prospectus, and information that we file
later with the Commission will automatically update and supersede this
information. We incorporate by reference the documents listed below and any
future filings made with the Commission under Sections 13(a), 13(c), 14, or
15(d) of the Securities and Exchange Act of 1934, as amended (the "EXCHANGE
ACT") until we, or our agents, sell all of the securities offered under this
prospectus:
- Annual Report on Form 10-K (excluding the report, dated January 11, 1999
of Arthur Andersen LLP set forth in Exhibit 13 thereto) for the year
ended December 31, 1998;
- Quarterly Report on Form 10-Q for the quarter ended March 31, 1999;
2
<PAGE> 36
- Current Reports on Form 8-K filed on March 16, 1999 (as amended on April
2, 1999), May 4, 1999 (as amended on May 19, 1999) and May 20, 1999;
- The description of the common stock contained in our Form 8-A dated
August 5, 1971, as amended; and
- The description of the preferred share purchase rights (the "PREFERRED
STOCK PURCHASE RIGHTS") issued pursuant to the Rights Agreement, dated as
of November 23, 1998, between Firstar and Firstar Bank Milwaukee N.A., as
rights agent (the "RIGHTS AGREEMENT") and described in our Registration
Statement on Form 8-A dated December 1, 1998 and any amendment or report
filed for the purpose of updating such description.
This prospectus is part of a registration statement that we filed with the
Commission utilizing a "shelf" registration process. Under this shelf
registration process, we may sell any combination of the securities described in
this prospectus (referred to from time to time in this document as the "OFFERED
SECURITIES") in one or more offerings up to a total dollar amount of
$1,000,000,000. This prospectus provides you with a general description of the
securities we may offer. As permitted by Commission rules, this prospectus does
not contain all of the information included in the registration statement and
the accompanying exhibits and schedules we file with the Commission. Each time
we sell securities, we will provide a prospectus supplement that will contain
specific information about the terms of that offering. The prospectus supplement
may also add, update or change information contained in this prospectus. You
should read both this prospectus and any prospectus supplement together with the
registration statement, the exhibits and schedules for more information about us
and our securities.
Unless otherwise indicated or unless the context requires otherwise, all
references in this prospectus to "we," "us," "our" or similar references mean
Firstar Corporation and its subsidiaries.
We will provide a copy of any or all of the reports or documents
incorporated by reference (other than exhibits, unless such exhibits are
specifically incorporated by reference in such documents), without charge, to
any person who makes a written or oral request to us for such material. You
should send your written request for such material to David M. Moffett, Chief
Financial Officer, Firstar Corporation, 777 East Wisconsin Avenue, Milwaukee,
Wisconsin 53202. Telephone requests may be directed to 414-765-4518.
----------------------
Unless otherwise indicated, currency amounts in this prospectus and any
prospectus supplement are stated in United States dollars ("$," "dollars," "U.S.
dollars," or "U.S. $").
3
<PAGE> 37
USE OF PROCEEDS
Unless otherwise specified in an applicable prospectus supplement, we will
use the net proceeds we receive from the sale of the securities offered by this
prospectus and the accompanying prospectus supplement for general corporate
purposes, including investments in or advances to existing or future
subsidiaries, repayment of maturing obligations, and redemption of outstanding
indebtedness. Pending such use, we may temporarily invest the net proceeds or
use them to reduce short-term indebtedness.
RATIOS OF EARNINGS TO FIXED CHARGES AND TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
Our consolidated ratios of earnings to fixed charges and our ratio of
earnings to combined fixed charges and preferred stock dividends for each of the
years in the five-year period ended December 31, 1998 and for the quarterly
period ended March 31, 1999 are as follows:
<TABLE>
<CAPTION>
THREE
MONTHS
ENDED FISCAL YEAR ENDED DECEMBER 31,
MARCH 31, -----------------------------------------
1999 1998 1997 1996 1995 1994
--------- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits........ 4.25x 2.90x 3.65x 3.46x 3.10x 4.11x
Including interest on deposits........ 1.88x 1.51x 1.70x 1.60x 1.55x 1.75x
Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends:
Excluding interest on deposits........ 4.25x 2.90x 3.64x 3.45x 3.09x 4.08x
Including interest on deposits........ 1.88x 1.51x 1.70x 1.60x 1.55x 1.75x
</TABLE>
The consolidated ratio of earnings to fixed charges is computed by dividing
income before income taxes plus fixed charges less capitalized interest by fixed
charges. The consolidated ratio of earnings to combined fixed charges and
preferred stock dividends is computed by dividing income before income taxes
plus fixed charges less capitalized interest by fixed charges and pretax
earnings required to cover preferred stock dividends. Fixed charges, excluding
interest on deposits, consist of interest on short-term borrowings and long-term
debt, amortization of debt expense, capitalized interest and one-third of net
rental expense (which is deemed representative of the interest factor). Fixed
charges, including interest on deposits, consist of the foregoing items plus
interest on deposits. Pretax earnings required to cover preferred stock
dividends have been computed by dividing preferred stock dividends by one minus
our effective income tax rate.
4
<PAGE> 38
CERTAIN REGULATORY MATTERS
GENERAL
As a bank holding company, we are subject to supervision and examination by
the Board of Governors of the Federal Reserve System (the "FEDERAL RESERVE
BOARD"). Under the Bank Holding Company Act of 1956, as amended (the "BHCA"), a
bank holding company generally may not, directly or indirectly, acquire the
ownership or control of more than 5% of the voting securities or all or
substantially all of the assets of any company, including a bank, without the
prior approval of (or, in the case of certain non-bank companies, prior notice
to) the Federal Reserve Board. In addition, under the BHCA, a bank holding
company is generally prohibited from engaging in nonbanking activities.
Proposals to change the laws and regulations governing the banking industry are
frequently raised in Congress, in the state legislatures and before the various
bank regulatory agencies. The likelihood and timing of any changes and the
impact such changes might have on our banks and their affiliates are difficult
to determine.
Our banks are subject to supervision and examination by applicable U.S.
federal and state banking agencies. Our bank subsidiaries with national charters
are primarily regulated by the Office of the Comptroller of the Currency (the
"OCC"). Our subsidiary banks with state charters are supervised and examined by
their respective state banking agencies and either by the Federal Reserve Board
(if a member bank of the Federal Reserve System) or by the Federal Deposit
Insurance Corporation (the "FDIC") if a nonmember. The deposits of our banks are
primarily insured by the Bank Insurance Fund (the "BIF") and certain deposits of
our banks are insured by the Savings Association Insurance Fund (the "SAIF");
for that reason, all of our banks are also subject to regulation by the FDIC.
Our banks are also affected by the fiscal and monetary policies of the federal
government and its agencies, including the Federal Reserve Board. An important
purpose of these policies is to curb inflation and control recessions through
control of the supply of money and credit. The Federal Reserve Board uses its
powers to establish reserve requirements of insured depository institutions, to
set the discount rate on its extensions of credit to insured depository
institutions and to conduct open market operations in U.S. government securities
so as to influence the supply of money and credit. These policies have a direct
effect on the amount of bank loans and deposits and on the interest rates
charged on loans and paid on deposits, with the result that federal policies
have a material effect on bank earnings. Future policies of the Federal Reserve
Board and other authorities cannot be predicted nor can their effect on the
future earnings of our banks be predicted.
To the extent that the following information describes statutory or
regulatory provisions, it is qualified in its entirety by reference to such
statutory or regulatory provisions.
DIVIDEND RESTRICTIONS
Various U.S. federal and state statutory provisions limit the amount of
dividends that our banking subsidiaries can pay to us without regulatory
approval. The approval of applicable U.S. federal bank regulatory agencies is
required for the payment of any dividend if the total of all dividends declared
in any calendar year would exceed the total of the institution's net profits, as
defined by those regulatory agencies, for that year combined with its retained
net profits for the preceding two years. In addition, a national bank may not
pay a dividend in an amount greater than its net profits then on hand. The
payment of dividends by the banking subsidiaries may also be affected by other
factors, such as the maintenance of adequate capital.
Under these provisions our banks could have declared, as of March 31, 1999,
aggregate dividends of at least $143.6 million, without obtaining prior
regulatory approval and without reducing the capital of our banks below "well
capitalized" minimum regulatory levels.
In addition, if, in the opinion of the applicable U.S. federal bank
regulatory agency, a depository institution under its jurisdiction is engaged in
or is about to engage in an unsafe and unsound practice (which, depending on the
financial condition of the institution, could include the payment of dividends),
such agency may require, after notice and hearing, that the institution in
question cease and desist from
5
<PAGE> 39
such practice. The OCC has indicated that paying dividends that would deplete a
depository institution's capital base to an inadequate level would be an unsafe
and unsound practice. Moreover, an insured depository institution may not pay
any dividends if that payment would cause it to become undercapitalized or once
it is undercapitalized. See "-- Capital Requirements." Also, the U.S. federal
bank regulatory agencies have issued policy statements that provide that
depository institutions and their holding companies should generally pay
dividends only out of current operating earnings.
HOLDING COMPANY STRUCTURE
We are a legal entity separate and distinct from our banking and nonbanking
subsidiaries. Accordingly, our right, and thus the rights of our creditors, to
participate in any distribution of the assets or earnings of any subsidiary
other than in our capacity as a bona fide creditor of the subsidiary is
necessarily subject to the prior satisfaction of claims of creditors of the
subsidiary. Any capital loan by us to a bank subsidiary is subordinate in right
of payment to deposits and to other indebtedness of the bank subsidiary. The
principal sources of our revenues are dividends and fees from our subsidiaries.
There are various legal restrictions on the extent to which a bank holding
company, such as Firstar, and certain of its nonbank subsidiaries can borrow or
otherwise obtain credit from their bank subsidiaries. In general, these
restrictions require that any extensions of credit must be on non-preferential
terms and fully secured by designated amounts of specified collateral. These
restrictions also limit any holding company or its nonbank subsidiaries to 10%
of the lending bank's capital stock and surplus, and all of the holding
company's nonbank subsidiaries to 20% of the lending bank's capital stock and
surplus in the aggregate.
Under Federal Reserve Board policy, a bank holding company is expected to
act as a source of financial and managerial strength to its subsidiary banks and
to commit resources to support its subsidiary banks. This support may be
required at times when we may not have the resources to provide it. Consistent
with the policy regarding bank holding companies serving as a source of
financial strength for their subsidiary banks, the Federal Reserve Board has
stated that, as a matter of prudent banking, a bank holding company generally
should not maintain a rate of cash dividends unless its net income available to
common shareholders has been sufficient to fully fund such dividend rate, and
the prospective rate of earnings retention appears consistent with the bank
holding company's capital needs, asset quality and overall financial condition.
In addition, in the event of a bank holding company's bankruptcy, any commitment
by the bank holding company to a federal bank regulatory agency to maintain the
capital of a subsidiary bank will be assumed by the bankruptcy trustee and
entitled to a priority of payment.
Moreover, a depository institution insured by the FDIC can be held liable
for any loss incurred by, or reasonably expected to be incurred by, the FDIC in
connection with:
- the default of a commonly controlled FDIC-insured depository institution,
or
- any assistance provided by the FDIC to a commonly controlled FDIC-insured
depository institution in danger of default.
"DEFAULT" is defined generally as the appointment of a conservator or receiver
and "in danger of default" is defined generally as the existence of certain
conditions indicating that a "default" is likely to occur in the absence of
regulatory assistance.
In addition, federal law (12 U.S.C. Section 55) permits the OCC to order
the pro rata assessment of shareholders of a national bank whose capital stock
has become impaired, by losses or otherwise, to relieve a deficiency in such
national bank's capital stock. This statute also provides for the enforcement of
any pro rata assessment of shareholders of a national bank to cover such
impairment of capital stock by sale, to the extent necessary, of the capital
stock of any assessed shareholder failing to pay the assessment. As the sole
shareholder of our banks, we are subject to those provisions.
6
<PAGE> 40
ACQUISITIONS
Effective September 29, 1995, under the provisions of the Riegle-Neal
Interstate Banking and Branching Efficiency Act of 1994 (the "RIEGLE-NEAL ACT"),
we have been able to acquire banks located in any state, notwithstanding the
permissibility of those acquisitions under state law. However, those
acquisitions are subject to any state law requiring the bank being acquired to
have been organized and operating for a minimum period of time, not to exceed
five years. In addition, under the Riegle-Neal Act, bank mergers are subject to
federal and state deposit concentration limits (10% nationwide, and 30% in any
one state). State deposit concentration limit may be more or less than 30%,
depending on state law.
The Riegle-Neal Act also permits interstate branching through interstate
bank mergers or de novo branching. Under this provision, our banks may merge
with each other or with other banks across state lines, subject to certain
restrictions. In addition, subject to state law, a bank may open branches in
states in which it does not already have branches.
CAPITAL REQUIREMENTS
The Federal Reserve Board has issued standards for measuring capital
adequacy for bank holding companies. These standards are designed to provide
risk-responsive capital guidelines and to incorporate a consistent framework for
use by financial institutions operating in major international financial
markets. The banking regulators have issued standards for banks that are
substantially similar to the standards for bank holding companies.
In general, the risk-related standards require banks and bank holding
companies to maintain certain capital levels based on "risk-adjusted" assets, so
that categories of assets with potentially higher credit risk will require more
capital backing than categories with lower credit risk. In addition, banks and
bank holding companies are required to maintain capital to support certain
activities which are not reflected on their balance sheets, such as loan
commitments of one year or longer.
Under the risk-based capital standard, the minimum consolidated ratio of
total capital to risk-adjusted assets (including certain off-balance sheet
items) required by the Federal Reserve Board for bank holding companies is
currently 8%. At least one-half of the total capital, which the Federal Reserve
Board refers to as Tier 1 Capital, must be comprised of common equity, retained
earnings, qualifying noncumulative perpetual preferred stock, a limited amount
of qualifying cumulative perpetual preferred stock and a minority interest in
the equity accounts of consolidated subsidiaries, less certain items such as
goodwill and certain other intangible assets. The remainder may consist of
qualifying hybrid capital instruments, perpetual debt, mandatory convertible
debt securities, a limited amount of subordinated debt, preferred stock that
does not qualify as Tier 1 Capital, and a limited amount of loan and lease loss
reserves. As of March 31, 1999, our Tier 1 Capital and total capital to risk
adjusted assets ratios were 9.29% and 11.29%, respectively.
In addition to the risk-based standard, the Federal Reserve Board has
established minimum leverage ratio guidelines for bank holding companies.
Similar guidelines exist for banks. These guidelines provide for a minimum ratio
of Tier 1 Capital to adjusted average total assets less goodwill and certain
other intangibles (the "LEVERAGE RATIO") of 3% for bank holding companies that
meet certain specified criteria, including having the highest regulatory rating.
Other bank holding companies generally are required to maintain a Leverage Ratio
of at least 4% to 5%.
The guidelines also provide that bank holding companies experiencing
internal growth or making acquisitions are expected to maintain strong capital
positions substantially above the minimum supervisory levels without significant
reliance on intangible assets. Furthermore, the Federal Reserve Board has
indicated that it will consider a "tangible Tier 1 Capital Leverage Ratio"
(deducting all intangibles) and other indicators of capital strength in
evaluating proposals for expansion or new activities.
At March 31, 1999, our consolidated Leverage Ratio was 8.07%.
7
<PAGE> 41
In December 1991, Congress enacted the Federal Deposit Insurance
Corporation Improvement Act of 1991 (the "FDICIA"), which substantially revised
the Federal Deposit Insurance Act (the "FDIA") and makes revisions to several
other federal banking statutes. Among other things, the FDICIA requires federal
banking regulators to take "prompt corrective action" in respect of FDIC-insured
depository institutions that do not meet minimum capital requirements. The
FDICIA establishes five capital tiers: "well capitalized," "adequately
capitalized," "undercapitalized," "significantly undercapitalized" and
"critically undercapitalized." Under the regulations of the applicable U.S.
federal bank regulatory agency, an FDIC-insured depository institution is
defined to be well capitalized if it maintains a leverage ratio of at least 5%,
a risk-adjusted Tier 1 capital ratio of at least 6% and a risk-adjusted total
capital ratio of at least 10% and is not subject to a directive, order or
written agreement to meet and maintain specific capital levels. An insured
depository institution is defined to be adequately capitalized if it meets all
of its minimum capital requirements as described above under "-- Capital
Requirements." An adequately capitalized institution may only accept brokered
deposits if it receives a waiver from the FDIC approval. An insured depository
institution will be considered undercapitalized if it fails to meet any minimum
required measure; it will be considered significantly undercapitalized if it has
a risk-adjusted total capital ratio of less than 6%, risk-adjusted Tier 1
capital ratio of less than 3% or a leverage ratio of less than 3%; and it will
be considered critically undercapitalized if it fails to maintain a level of
tangible equity equal to at least 2% of total assets. An insured depository
institution may be deemed to be in a capitalization category that is lower than
is indicated by its actual capital position if it receives an unsatisfactory
examination rating.
The FDICIA generally prohibits a depository institution from making any
capital distribution (including payment of a dividend) or paying any management
fee to its holding company if the depository institution would thereafter be
undercapitalized. Undercapitalized depository institutions are subject to a wide
range of limitations on operations and activities, including growth limitations,
and are required to submit a capital restoration plan. Undercapitalized
institutions may not accept brokered deposits. The depository institution's
parent holding company must guarantee that the institution will comply with the
capital restoration plan. The parent holding company's obligations under that
guarantee would take priority over the claims of unsecured creditors in the
event of the parent holding company's bankruptcy. The aggregate liability of the
parent holding company is limited to the lesser of (a) an amount equal to 5% of
the depository institution's total assets at the time it became undercapitalized
and (b) the amount which is necessary (or would have been necessary) to bring
the institution into compliance with all capital standards applicable with
respect to that institution as of the time it fails to comply with the plan. If
a depository institution fails to submit an acceptable plan, it is treated as if
it were significantly undercapitalized.
Significantly undercapitalized depository institutions may be subject to a
number of requirements and restrictions, including orders to sell sufficient
voting stock to become adequately capitalized, requirements to reduce total
assets, and cessation of receipt of deposits from correspondent banks.
Critically undercapitalized institutions may not, beginning 60 days after
becoming critically undercapitalized, make any payment of principal or interest
on their subordinated debt. In addition, critically undercapitalized
institutions are subject to the appointment of a receiver or conservator.
The Federal Reserve Board and the other U.S. federal banking agencies are
also required by regulation to take into account risks stemming from
non-traditional activities, such as credit risk, as well as interest rate risk,
in considering the capital adequacy of an institution. Bank holding companies
and banks with substantial trading exposure are also required to hold capital
based on their exposure to market risk.
Based on the above criteria and our bank subsidiaries' capital ratios as of
March 31, 1999, each of our bank subsidiaries qualifies as "well capitalized"
under FDICIA and the applicable prompt corrective action regulations. The
terminology used in FDICIA and the prompt corrective action regulations, as
described above, should not necessarily be viewed as describing the condition or
prospects of any depository institutions, including our bank subsidiaries.
8
<PAGE> 42
FDIC INSURANCE
Our banks are subject to FDIC deposit insurance assessments. The FDIC has
adopted a risk-based premium schedule. Each financial institution is assigned to
one of three capital groups: "well capitalized," "adequately capitalized" or
"undercapitalized". Each financial institution is further assigned to one of
three subgroups within a capital group on the basis of supervisory evaluations
by the institution's primary U.S. federal and, if applicable, state supervisors,
and on the basis of other information relevant to the institution's financial
condition and the risk posed to the applicable insurance fund. The FDIC may
modify the assessment rate for each category semiannually. A significant
increase in assessment rates could have a material impact on us.
DEPOSITOR PREFERENCE
Under the FDICIA, claims of holders of domestic deposits and a number of
claims for administrative expenses and employee compensation against an
FDIC-insured depository institution have priority over other general unsecured
claims against the institution in the "liquidation or other resolution" of the
institution by a receiver.
9
<PAGE> 43
DESCRIPTION OF DEBT SECURITIES
This section describes the general terms and provisions of the debt
securities. Each time we offer debt securities, we will describe in a prospectus
supplement, and possibly a pricing supplement, the specific terms of that
particular offering.
We may from time to time offer to sell debt securities, consisting of
unsecured debt securities, which may be senior (the "SENIOR SECURITIES") or
subordinated (the "SUBORDINATED SECURITIES," and, together with the senior
securities, the "DEBT SECURITIES").
We will issue the senior debt securities under an indenture (the "SENIOR
INDENTURE"), between Firstar and Citibank, N.A., as trustee (the "SENIOR
TRUSTEE"). We will issue the Subordinated Securities under an indenture (the
"SUBORDINATED INDENTURE"), between Firstar and Citibank, N.A., as trustee (the
"SUBORDINATED TRUSTEE" and, together with the Senior Trustee, the "TRUSTEES").
The Senior Indenture and a form of the Subordinated Indenture (collectively, the
"INDENTURES") is attached as an exhibit to the registration statement.
The Indentures are contracts between us and the Trustees. If we default on
the debt securities, the Trustee has the power to enforce your rights against
us. In addition, the Trustee performs administrative duties on our behalf, such
as sending you interest payments and transferring your debt securities to a new
purchaser.
We have summarized selected provisions of the Indentures below. Because
this is only a summary, it is not complete and does not describe every aspect of
the debt securities. Numerical references in parentheses below are to sections
of the Indentures. Wherever we refer to particular sections or defined terms of
the Indentures, we intend that such sections or defined terms be incorporated in
this document by reference. Unless otherwise indicated, capitalized terms have
the meanings ascribed to them in the Indentures.
We are a bank holding company, and our right to participate as a
shareholder in any distribution of assets of any subsidiary upon its liquidation
or reorganization or winding-up is subject to the prior claims of creditors of
that subsidiary. Consequently, the ability of the holders of the debt securities
to benefit, as our creditors, from any distributions is also subject to these
prior claims. Our banks are subject to claims by creditors for long-term and
short-term debt obligations, including deposit liabilities, obligations for
federal funds purchased and securities sold under repurchase agreements. There
are also various legal limitations on the extent to which our banks may pay
dividends or otherwise supply funds to us or our affiliates. See "Certain
Regulatory Matters."
GENERAL
Each Indenture permits us to issue debt securities from time to time in an
unlimited amount in one or more series. (Section 301)
The senior debt securities will be unsecured and will rank pari passu with
our other unsecured indebtedness. The subordinated debt securities will be
unsecured and will rank pari passu with our other subordinated debt, and,
together with that other subordinated debt, will be subordinated and junior in
right of payment to the prior payment in full of our senior debt.
A prospectus supplement for a specific series of offered debt securities
will describe the specific terms of those offered debt securities. That
prospectus supplement will address some or all of the following:
- the title and type and any limit on the aggregate principal amount of the
debt securities;
- the price (expressed as a percentage of the aggregate principal amount)
at which the debt securities will be issued;
- the date or dates on which the debt securities will mature or method by
which those dates can be determined and the dates on which premiums, if
any, will be payable;
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- the currency or currencies in which the debt securities are being sold
and are denominated and the circumstances, if any, under which any debt
securities may be payable in a currency other than the currency in which
the debt securities are denominated and, if so, the exchange rate, the
Exchange Rate Agent and, if the holder of any debt securities may elect
the currency in which payments on the debt securities are to be made, the
manner of that election;
- the denominations in which any debt securities which are Registered
Securities will be issuable, if other than denominations of $1,000 and
any integral multiple of $1,000, and the denomination or denominations in
which any debt securities which are Bearer Securities will be issuable,
if other than the denomination of $5,000;
- the interest rate or rates (which may be fixed or variable) for the debt
securities, which interest rate may be zero in the case of certain debt
securities issued at an issue price representing a discount from the
principal amount payable at maturity;
- the date from which interest on the debt securities will accrue, the
dates on which interest will be payable or the method by which those
dates can be determined, the date on which payment of interest will
commence and the circumstances, if any, in which we may defer interest
payments;
- the dates on which, and the price or prices at which, the debt securities
will, pursuant to any mandatory sinking fund provision, or may, pursuant
to any optional redemption provision, be redeemed or repaid, and the
other terms and provisions of any optional redemption or required
repayment;
- the place or places where the principal (and premium if any) and interest
may be payable;
- in the case of the subordinated debt securities, any terms by which those
securities may be convertible into common stock, preferred shares or
depositary shares, and, in the case of subordinated debt securities
convertible into preferred shares or depositary shares, the terms of
those preferred shares or depositary shares;
- whether the debt securities are to be issuable as Bearer Securities
and/or Registered Securities, and, if issuable as Bearer Securities, the
terms upon which any Bearer Securities may be exchanged for Registered
Securities;
- whether the debt securities are to be issued in the form of one or more
temporary or permanent Global Securities, and, if so, the identity of the
depositary for the Global Security or Securities;
- if a temporary global debt security is to be issued with respect to that
series, the extent to which, and the manner in which, any interest
payable on an Interest Payment Date prior to the issuance of a permanent
Global Security or definitive Bearer Securities will be credited to the
accounts of the persons entitled to the payment on that interest payment
date;
- if a temporary Global Security is to be issued with respect to that
series, the terms upon which interests in that temporary Global Security
may be exchanged for interests in a permanent Global Security or for
definitive debt securities of the series, and the terms upon which
interests in a permanent Global Security, if any, may be exchanged for
definitive debt securities of that series;
- any additional restrictive covenants included for the benefit of Holders
of the debt securities;
- any additional Events of Default applicable to the debt securities;
- information with respect to book-entry procedures, if any;
- whether the debt securities will be repayable at the option of the
Holder;
- any other terms of the debt securities not inconsistent with the
provisions of the applicable Indenture;
- our right to defease the debt securities or certain covenants under the
Indentures;
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- the Person or Persons who shall be the Security Registrar; and
- the terms of any securities being offered together with or separately
from the debt securities.
The applicable prospectus supplement will also describe any special
provisions for the payment of additional amounts with respect to the debt
securities, certain U.S. federal income tax consequences, and any risk factors
or other special considerations applicable to the debt securities. If a debt
security is denominated in a foreign currency, that debt security may not trade
on a U.S. national securities exchange unless and until the Commission has
approved appropriate rule changes pursuant to the Securities Act of 1933, as
amended (the "SECURITIES ACT") to accommodate the trading of that debt security.
Neither Indenture contains any restriction on our ability to enter into
highly leveraged transactions or any provision affording special protection to
holders of debt securities in the event we engage in a highly leveraged
transaction. Further, neither Indenture contains any provisions that would
provide protection to holders of debt securities upon a sudden and dramatic
decline in our credit quality resulting from a takeover, recapitalization or
similar restructuring.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
We may issue debt securities of a series in definitive form solely as
Registered Securities, solely as Bearer Securities or as both Registered
Securities and Bearer Securities. Unless otherwise indicated in the prospectus
supplement, Bearer Securities other than Bearer Securities in temporary or
permanent global form will have interest coupons attached. Each Indenture also
provides that we may issue Bearer Securities or Registered Securities of a
series in permanent global form. See "-- Permanent Global Securities."
You may exchange Registered Securities of any series for other Registered
Securities of the same series of authorized denominations and of a like
aggregate principal amount, tenor and terms. In addition, if debt securities of
any series are issuable as both Registered Securities and Bearer Securities, at
your option upon receipt of a request confirmed in writing, and subject to the
terms of the applicable Indenture, you may exchange Bearer Securities (with all
unmatured coupons, except as provided below, and all matured coupons in default)
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount, tenor and terms. If you surrender Bearer
Securities in exchange for Registered Securities between the close of business
on a Regular Record Date or a Special Record Date and the relevant date for
payment of interest, you should surrender them without the coupon relating to
that date for payment of interest because interest will not be payable in
respect of the Registered Security issued in exchange for that Bearer Security,
but will be payable only to the Holder of that coupon when due in accordance
with the terms of the applicable Indenture. We will not issue Bearer Securities
in exchange for Registered Securities. (Section 305) Each Bearer Security, other
than a temporary global Bearer Security, and each interest coupon will bear the
following legend: "Any United States Person who holds this obligation will be
subject to limitations under the United States federal income tax laws including
the limitations provided in Sections 165(j) and 1287(a) of the Internal Revenue
Code."
You may present debt securities for exchange as provided above, and you may
present Registered Securities for registration of transfer (duly endorsed or
accompanied by a satisfactory written instrument of transfer), at the office of
the Security Registrar or at the office of any transfer agent designated by us
for that purpose with respect to that series of debt securities, without service
charge and upon payment of any taxes and other governmental charges. (Section
305) If the applicable prospectus supplement refers to any transfer agent (in
addition to the Security Registrar) initially designated by us with respect to
any series of debt securities, we may at any time rescind the designation of
that transfer agent or approve a change in the location through which that
transfer agent (or Security Registrar) acts, except that, if debt securities of
a series are issuable solely as Registered Securities, we will be required to
maintain a transfer agent in each Place of Payment for that series and, if debt
securities of a series are issuable as Bearer Securities, we will be required to
maintain (in addition to the Security Registrar) a transfer agent in a Place of
Payment for that series located outside the United States. We may at any time
designate additional transfer agents with respect to any series of debt
securities. (Section 1002)
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We will not be required to:
- issue, register the transfer of or exchange debt securities of any
particular series to be redeemed for a period of 15 days preceding the
first publication of the relevant notice of redemption, or, if Registered
Securities are outstanding and there is no publication, the mailing of
the relevant notice of redemption;
- register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except the unredeemed portion of any
Registered Security being redeemed in part; or
- exchange any Bearer Security so selected for redemption except that you
may exchange a Bearer Security for a Registered Security of like tenor
and terms of that series, provided that you will be required to surrender
that Registered Security for redemption. (Section 305)
Additional information regarding restrictions on the issuance, exchange and
transfer of and special U.S. federal income tax considerations relating to
Bearer Securities will be set forth in the applicable prospectus supplement.
TEMPORARY GLOBAL SECURITIES
If we specify in the applicable prospectus supplement, all or any portion
of the debt securities of a series which are issuable as Bearer Securities will
initially be represented by one or more temporary Global Securities, without
interest coupons, to be deposited with a common depositary in London for Morgan
Guaranty Trust Corporation of New York, Brussels Office, as operator of the
Euroclear System ("EUROCLEAR") and Cedel S.A. ("CEDEL") for credit to designated
accounts. On and after the date determined as provided in that temporary Global
Security and described in the applicable prospectus supplement, but within a
reasonable time, that temporary Global Security will be exchangeable for
definitive Bearer Securities, definitive Registered Securities or all or a
portion of a permanent global Bearer Security, or any combination thereof, as
specified in the applicable prospectus supplement. No definitive Bearer Security
or permanent global Bearer Security delivered in exchange for a portion of a
temporary Global Security shall be mailed or otherwise delivered to any location
in the United States in connection with that exchange. (Section 304)
Additional information regarding restrictions on and special U.S. federal
income tax consequences relating to temporary Global Securities will be set
forth in the applicable prospectus supplement.
PERMANENT GLOBAL SECURITIES
If any debt securities of a series are issuable in permanent global form,
the applicable prospectus supplement will describe the circumstances, if any,
under which beneficial owners of interests in that permanent Global Security may
exchange those interests for debt securities of that series and of like tenor
and principal amount of any authorized form and denomination. The principal and
any premium and interest on a permanent Global Security will be payable in the
manner described in the applicable prospectus supplement.
PAYMENTS AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement,
payments of principal of and premium, if any, and interest, if any, on Bearer
Securities will be payable in the currency designated in the prospectus
supplement, subject to any applicable laws and regulations, at paying agencies
outside the United States as we may appoint from time to time. Unless otherwise
provided in the prospectus supplement, those payments may be made, at the option
of the Holder, by a check in the designated currency or by transfer to an
account in the designated currency maintained by the payee with a bank located
outside the United States.
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Unless otherwise indicated in the applicable prospectus supplement, payment
of interest on Bearer Securities on any Interest Payment Date will be made only
against surrender of the coupon relating to that Interest Payment Date to a
paying agent outside the United States. (Section 1001)
No payment with respect to any Bearer Security will be made at any office
or paying agency maintained by us in the United States nor will any such payment
be made by transfer to an account, or by mail to an address, in the United
States. Notwithstanding the foregoing, payments of principal and premium, if
any, and interest, if any, on Bearer Securities denominated and payable in U.S.
dollars will be made in U.S. dollars at an office or agency that we designate,
located in the United States, if payment of the full amount thereof in U.S.
dollars at all paying agencies outside the United States is illegal or
effectively precluded by exchange controls or other similar restrictions, and
the Trustee receives an opinion of counsel that such payment within the United
States is legal. (Section 1002)
Unless otherwise indicated in the applicable prospectus supplement, payment
of principal and premium, if any, and interest, if any, on a Registered Security
will be payable in the currency designated in the prospectus supplement.
Interest will be payable at the office of the paying agent or paying agents we
may appoint from time to time, except that, at our option, payment of any
interest may be made by a check in the designated currency mailed to the Holder
at the Holder's registered address or by wire transfer to an account in the
currency designated by the Holder in writing not less than ten days prior to the
date of the payment. Unless otherwise indicated in the applicable prospectus
supplement, payment of any installment of interest on a Registered Security will
be made to the Person in whose name that Registered Security is registered at
the close of business on the Regular Record Date for the payments. (Section 307)
Unless otherwise indicated in the applicable prospectus supplement, principal
payable at maturity will be paid to the registered holder upon surrender of the
Registered Security at the office of a duly appointed paying agent.
The paying agents outside the United States initially appointed by us for a
series of debt securities will be named in the applicable prospectus supplement.
We may terminate the appointment of any of the paying agents from time to time,
except that we will maintain at least one paying agent outside the United States
so long as any Bearer Securities are outstanding where Bearer Securities may be
presented for payment and may be surrendered for exchange, provided that so long
as any series of debt securities is listed on the Republic of Ireland or the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and that stock exchange shall so require, we will maintain a paying agent
in London or Luxembourg or any other required city located outside the United
States, as the case may be, for that series of debt securities. (Section 1002)
All moneys we pay to a paying agent for the payment of principal of or
premium, if any, or interest, if any, on any debt security that remains
unclaimed at the end of two years after that principal, premium or interest
shall have become due and payable will, at our request, be repaid to us, and the
Holder of that debt security or any coupon relating to that debt security will
thereafter look only to us for payment thereof. (Section 1003)
COVENANTS CONTAINED IN INDENTURES
The Senior Indenture provides that we will not, and will not permit any
Subsidiary to, sell or otherwise dispose of, or permit any "PRINCIPAL SUBSIDIARY
BANK" (defined as any Subsidiary Bank having total assets in excess of 10% of
our total consolidated assets and those of our Subsidiaries) to issue (except to
us), shares of "CAPITAL STOCK" (defined as outstanding shares of stock of any
class), or securities convertible into Capital Stock, of any Principal
Subsidiary Bank, or any Subsidiary owning, directly or indirectly, in whole or
in part, Capital Stock of a Principal Subsidiary Bank, with the following
exceptions:
- sales of directors' qualifying shares;
- sales or other dispositions for fair market value if, after giving effect
to that disposition and to the issuance of any shares issuable upon
conversion or exchange of securities convertible or
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exchangeable into Capital Stock, we would own, directly or indirectly,
through Subsidiaries, not less than 80% of the shares of each class of
Capital Stock of that Principal Subsidiary Bank;
- sales or other dispositions or issuances made in compliance with an order
or direction of a court or regulatory authority of competent
jurisdiction; or
- sales of Capital Stock by any Principal Subsidiary Bank to its
stockholders where the sale does not reduce the percentage of shares of
the same class owned by us. (Section 1006 of the Senior Indenture)
At the date hereof, the only Subsidiary Banks which are Principal
Subsidiary Banks are Firstar Bank, N.A., Firstar Bank Milwaukee, N.A., Firstar
Bank Wisconsin, Firstar Bank Minnesota, N.A. and Firstar Bank U.S.A., N.A.
Notwithstanding the foregoing, any Principal Subsidiary Bank may be merged into
or consolidated with another banking institution organized under the laws of the
United States, any of its states or the District of Columbia, if, after giving
effect to that merger or consolidation, we or any wholly-owned Subsidiary owns
at least 80% of the Capital Stock of that other banking institution then issued
and outstanding free and clear of any security interest and if, immediately
after giving effect thereto, no default or Event of Default shall have happened
and be continuing.
The Subordinated Indenture does not contain the foregoing covenant.
We are not restricted by the Indentures from incurring, assuming or
becoming liable for any type of debt or other obligations, from creating liens
on property for any purpose, or from paying dividends or making distributions on
our Capital Stock or purchasing or redeeming our 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
that would require us to repurchase or redeem or otherwise modify the terms of
any of the debt securities upon a change in control or other events involving us
which may adversely affect the creditworthiness of the debt securities.
CONSOLIDATION, MERGER AND SALE OF ASSETS
We may not consolidate with or merge with or into, or transfer or lease our
assets substantially as an entirety to, any Person unless (a) the successor
Person is a corporation organized and validly existing under the laws of a
domestic jurisdiction and expressly assumes our obligations on the debt
securities and under the applicable Indenture, and (b) after giving effect to
the 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 occurred and be
continuing. (Section 801)
MODIFICATION AND WAIVER
Except as to certain modifications and amendments not adverse to Holders of
debt securities, modifications and amendments of and waivers of compliance with
provisions of each Indenture may be made only with the consent of the Holders of
not less than a majority in principal amount of the outstanding debt securities
of each series affected by that modification, amendment or waiver; provided that
no such modification or amendment may, without the consent of the Holder of each
outstanding debt security or coupon affected by that modification or amendment:
- change the Stated Maturity of the principal or any installment of
principal or any installment of interest, if any;
- reduce the amount of principal or interest thereon, or any premium
payable upon redemption or repayment thereof or in the case of an
Original Issue Discount Security the amount of principal payable upon
acceleration of the Maturity thereof;
- change the place of payment or the currency in which principal or
interest is payable, if any;
- impair the right to institute suit for the enforcement of any payment of
the principal, premium, if any, and interest, if any, or adversely affect
the right of repayment, if any, at the option of the Holder;
- 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 applicable Indenture or for
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waiver of compliance with certain provisions of the applicable Indenture
or for waiver of certain defaults;
- reduce the requirements contained in the applicable Indenture for quorum
or voting;
- in the case of subordinated debt securities convertible into common
stock, impair any right to convert such subordinated debt securities; or
- modify any of the above provisions. (Section 902)
Each Indenture contains provisions for convening meetings of the Holders of
debt securities of a series issued under that Indenture if debt securities of
that series are issuable in whole or in part as Bearer Securities. (Section 1401
of the Senior Indenture, Section 1601 of the Subordinated Indenture) A meeting
may be called at any time by the Trustee for those debt securities, or upon our
request or the request of the Holders of at least 10% in principal amount of the
outstanding debt securities of that series, in any of those cases upon notice
given in accordance with the Indenture with respect thereto. (Section 1402 of
the Senior Indenture, Section 1602 of the Subordinated Indenture)
Except as limited by the proviso in the preceding paragraph, any resolution
presented at a meeting or adjourned meeting at which a quorum is present may be
adopted by the affirmative vote of the Holders of a majority in principal amount
of the outstanding debt securities of that series; provided, however, that,
except as limited by the proviso in the preceding paragraph, any resolution with
respect to any consent or waiver which may be given by the Holders of not less
than a majority in principal amount of the outstanding debt securities of a
series issued under an Indenture may be adopted at a meeting or an adjourned
meeting at which a quorum is present only by the affirmative vote of the Holders
of a majority in principal amount of those outstanding debt securities of that
series; and provided, further, that, except as limited by the proviso in the
preceding paragraph, any resolution with respect to any demand, consent, waiver
or other action which may be made, given or taken by the Holders of a specified
percentage, which is less than a majority in principal amount of the outstanding
debt securities of a series issued under an Indenture, may be adopted at a
meeting or adjourned meeting at which a quorum is present by the affirmative
vote of the Holders of that specified percentage in principal amount of the
outstanding debt securities of that series. (Section 1404 of the Senior
Indenture, Section 1604 of the Subordinated Indenture)
Any resolution passed or decision taken at any meeting of Holders of debt
securities of any series duly held in accordance with the applicable Indenture
with respect to those debt securities will be binding on all Holders of debt
securities of that series and the related coupons issued under that Indenture.
The quorum at any meeting of Holders of a series of debt securities called to
adopt a resolution, and at any reconvened meeting, will be persons holding or
representing a majority in principal amount of the outstanding debt securities
of that series; provided, however, that if any action is to be taken at such
meeting with respect to a consent or waiver which may be given by the Holders of
not less than a majority in principal amount of the outstanding debt securities
of a series, the Persons holding or representing a majority in principal amount
of the outstanding debt securities of that series issued under that Indenture
will constitute a quorum. (Section 1404 of the Senior Indenture, Section 1604 of
the Subordinated Indenture)
EVENTS OF DEFAULT
Unless otherwise provided in the applicable prospectus supplement, any
series of senior debt securities issued under the Senior Indenture will provide
that the following will constitute Events of Default with respect to that
series:
- default in the deposit of any sinking fund payment on any senior debt
security of that series when due;
- failure to perform specific covenants contained in that Indenture;
- failure to perform any other covenant in that Indenture, continued for 30
days after written notice of failure by the Trustee or the Holders of at
least 25% in principal amount of the outstanding senior debt securities
of that series issued under that Indenture; and
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- specific events of bankruptcy, insolvency or reorganization of Firstar.
(Section 501 of the Senior Indenture)
Unless otherwise provided in the applicable prospectus supplement, any
series of subordinated debt securities issued under the Subordinated Indenture
will provide that the only Event of Default will be specific events of
bankruptcy of Firstar. (Section 501 of the Senior Subordinated Indenture) In the
event of a default in the payment of principal, premium, if any, or interest, if
any; or a default of any sinking fund payment; or the nonperformance of any
covenant or agreement in the debt securities or Indentures, the Trustees,
subject to specific limitations and conditions, may institute judicial
proceedings to enforce payment of the principal, premium, if any, or interest,
if any, or to obtain the performance of the applicable covenant or agreement or
any other proper remedy. (Section 503)
We are required to file with each Trustee annually an Officers' Certificate
concerning the absence of certain defaults under the terms of the Indentures.
(Section 1008 of the Senior Indenture, Section 1004 of the Subordinated
Indenture) Each Indenture provides that if an Event of Default specified in that
Indenture shall occur and be continuing, either the Trustee under the Indenture
or the Holders of not less than 25% in principal amount of the outstanding debt
securities of that series issued under that Indenture may declare the principal
of all those debt securities (or in the case of original issue discount
securities, that portion of the principal amount thereof as may be specified in
the terms thereof) to be due and payable. (Section 502) In certain cases, the
Holders of a majority in principal amount of the outstanding debt securities of
any series may, on behalf of the Holders of all debt securities of any series
and the related coupons, waive any past default or Event of Default except a
default (a) in payment of the principal of or premium, if any, or interest, if
any, on any of the debt securities of that series, and (b) in respect of a
covenant or provision of the Indenture which cannot be modified or amended
without the consent of the Holder of each outstanding debt security of the
series or coupon affected.
Each Indenture contains a provision entitling the Trustee under the
Indenture, subject to the duty of that Trustee during default to act with the
required standard of care, to be indemnified by the Holders of the debt
securities of any series under the Indenture or any related coupons before
proceeding to exercise any right or power under the Indenture with respect to
that series at the request of those Holders. (Section 603) Each Indenture
provides that no Holder of any debt securities of any series under the Indenture
or any related coupons may institute any proceeding, judicial or otherwise, to
enforce that Indenture except in the case where the Trustee under the Indenture
fails to act for 60 days after it receives written notice of default and the
Trustee receives a request to enforce that Indenture by the Holders of not less
than 25% in aggregate principal amount of the outstanding debt securities of
that series and an offer of reasonable indemnity. (Section 507) This provision
will not prevent any Holder of debt securities or any related coupons 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 those
debt securities or exercising any trust or power conferred on it with respect to
the debt securities of those series. However, that 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)
The Subordinated Indenture provides that the Subordinated Trustee will give
to the Holders of subordinated debt securities notice of a default if not cured
or waived, but, except in the case of a default in the payment of principal, or
premium, if any, or interest, if any, on any subordinated debt securities of
that series or any related coupons or in the payment of any sinking fund
installment with respect to subordinated debt securities of that series or in
the exchange of Capital Securities for subordinated debt securities of that
series, the Trustee for that subordinated debt securities shall be protected in
withholding that notice if it determines in good faith that the withholding of
that notice is in the interest of the Holders of those subordinated debt
securities. (Section 602 of the Subordinated Indenture)
The Senior Indenture provides that the Senior Trustee will give to the
Holders of senior securities notice of a default; however, in the case of
default in the performance, or breach, of any covenant or
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warranty by us under the Senior Indenture, and continuance of that default or
breach for 30 days after notice of default is given to us by the Senior Trustee
or to us and the Senior Trustee by the Holders of at least 25% in principal
amount of the outstanding debt securities of that series, requiring it to be
remedied, the Senior Trustee for those senior securities will not give notice to
Holders of senior debt securities until at least 30 days after the occurrence of
that default. (Section 602 of the Subordinated Indenture)
DEFEASANCE AND DISCHARGE
We may be discharged from any and all obligations in respect of the debt
securities of any series (except for certain obligations relating to temporary
debt securities and exchange of debt securities, registration of transfer or
exchange of debt securities of that series, replacement of stolen, lost or
mutilated debt securities of that series, maintenance of paying agencies,
obligations to hold monies for payment in trust and payment of additional
amounts, if any, required in consequence of U.S. withholding taxes imposed on
payments to non-U.S. persons) upon the deposit with the appropriate Trustee, in
trust, of money and/or, to the extent such debt securities are denominated and
payable in U.S. dollars only, Eligible Instruments which through the payment of
interest and principal in respect thereof in accordance with their terms will
provide money in an amount sufficient to pay the principal of (and premium, if
any), each installment of interest on, and any mandatory sinking fund or
analogous payments on, the debt securities of that series on the Stated Maturity
of those payments in accordance with the terms of the applicable Indenture and
the debt securities of that series. Such a trust may be established only if,
among other things:
- we delivered to the appropriate Trustee an opinion of counsel to the
effect that (a) Firstar has received from, or there has been published
by, the Internal Revenue Service a ruling, or (b) since the date of the
applicable Indenture there has been a change in applicable U.S. federal
income tax law, in either case, to the effect that, and based thereon
that opinion of counsel shall confirm that, the Holders of debt
securities of that series will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of that deposit, defeasance
and discharge, and will be subject to U.S. federal income tax on the same
amounts and in the same manner and at the same times as would have been
the case if that deposit, defeasance and discharge had not occurred; and
- the debt securities of that series, if then listed on any domestic or
foreign securities exchange, will not be delisted as a result of that
deposit, defeasance and discharge. (Section 403)
In the event of any defeasance and discharge of debt securities of that
series, Holders of debt securities of that series would be able to look only to
the trust fund for payment of principal of and any premium and any interest on
their debt securities until maturity.
We may terminate certain of our obligations under each Indenture with
respect to the debt securities of any series under the Indenture, including its
obligations to comply with the covenants described under "-- Covenants Contained
in Indentures" above, with respect to those debt securities, on the terms and
subject to the conditions contained in those Indentures, by depositing in trust
with the applicable Trustee money and/or, to the extent those debt securities
are denominated and payable in U.S. dollars only, Eligible Instruments which,
through the payment of principal and interest in accordance with their terms,
will provide money in an amount sufficient to pay the principal and premium, if
any, and interest, if any, on those debt securities, and any mandatory sinking
fund, repayment or analogous payments thereon, on the scheduled due dates
therefor. That deposit and termination is conditioned, among other things, upon
our delivery of an opinion of counsel that the Holders of those debt securities
will have no U.S. federal income tax consequences as a result of that deposit
and termination. That termination will not relieve us of our obligation to pay
when due the principal of or interest on those debt securities if those debt
securities of that series are not paid from the money or Eligible Instruments
held by the Trustee for the payment thereof. (Section 1501 of the Senior
Indenture, Section 1701 of the Subordinated Indenture)
The applicable prospectus supplement may further describe the provisions,
if any, permitting or restricting this defeasance with respect to the debt
securities of a particular series. In the event we exercise our option to omit
compliance with the covenants described under "-- Covenants Contained in
Indentures" above with respect to the debt securities of any series as described
above and the debt
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securities of that series are declared due and payable because of the occurrence
of any Event of Default, then the amount of money and Eligible Instruments on
deposit with the applicable Trustee will be sufficient to pay amounts due on the
debt securities of that series at the time of their Stated Maturity but may not
be sufficient to pay amounts due on the debt securities of that series at the
time of the acceleration resulting from such Event of Default. In any event, we
will remain liable for those payments as provided in the applicable Indenture.
SUBORDINATION
The subordinated debt securities will be subordinate and junior in right of
payment, to the extent set forth in the Subordinated Indenture, to all of our
Senior Debt. In the event that we default in the payment of any principal,
premium, if any, or interest, if any, on any Senior Debt when the same becomes
due and payable, whether at maturity or at a date fixed for prepayment or by
declaration of acceleration or otherwise, then, unless and until such default
shall have been cured or waived or shall have ceased to exist, no direct or
indirect payment (in cash, property, securities, by set-off or otherwise) shall
be made or agreed to be made for principal, premium, if any, or interest, if
any, on the subordinated debt securities, or in respect of any redemption,
repayment, retirement, purchase or other acquisition of any of the subordinated
debt securities. "SENIOR DEBT" means any of our obligations to our creditors,
whether now outstanding or subsequently incurred, other than (a) any obligation
as to which it is provided that such obligation is not Senior Debt and (b) the
subordinated debt securities. As of March 31, 1999, we had outstanding Senior
Debt of approximately $329 million.
In the event of:
- any insolvency, bankruptcy, receivership, liquidation, reorganization,
readjustment, composition or other similar proceeding relating to us, our
creditors or our property,
- any proceeding for our liquidation, dissolution or other winding-up,
voluntary or involuntary, whether or not involving insolvency or
bankruptcy proceedings,
- any assignment for the benefit of our creditors, or
- any other marshalling of our assets,
then all Senior Debt (including any interest on that Senior Debt accruing after
the commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall be
made on account of the principal of or interest on the subordinated debt
securities. In that event, any payment or distribution on account of the
principal of or interest on the subordinated debt securities, whether in cash,
securities or other property (other than our securities or those of 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 debt securities, to
the payment of all Senior Debt at the time outstanding, and to any securities
issued in respect thereof under any plan of reorganization or readjustment),
which would otherwise (but for the subordination provisions) be payable or
deliverable in respect of the subordinated debt securities shall be paid or
delivered directly to the holders of Senior Debt in accordance with the
priorities then existing among those holders until all Senior Debt (including
any interest on that Senior Debt accruing after the commencement of any of those
proceedings) shall have been paid in full. (Section 1801 of the Subordinated
Indenture)
In the event of any such proceeding, after payment in full of all sums
owing with respect to Senior Debt, the Holders of subordinated debt securities,
together with the holders of any of our obligations ranking on a parity with the
subordinated debt securities, shall be entitled to be repaid from our remaining
assets the amounts at the time due and owing on account of unpaid principal,
premium, if any, and interest, if any, on the subordinated debt securities and
those other obligations before any payment or other distribution, whether in
cash, property or otherwise, shall be made on account of any capital stock or
our obligations ranking junior to the subordinated debt securities and those
other obligations. If any payment or distribution on account of the principal of
or interest on the subordinated debt securities of any character or any
security, whether in cash, securities or other property (other than our
securities or those of any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is
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subordinate, at least to the extent provided in the subordination provisions
with respect to the subordinated debt securities, to the payment of all Senior
Debt at the time outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment) shall be received by any
Holder of any subordinated debt securities in contravention of any of the terms
of the Subordinated Indenture, and before all the Senior Debt shall have been
paid in full, that payment or distribution or security shall be received in
trust for the benefit of, and shall be paid over or delivered and transferred
to, the holders of the Senior Debt at the time outstanding in accordance with
the priorities then existing among those holders for application to the payment
of all Senior Debt remaining unpaid to the extent necessary to pay all that
Senior Debt in full. (Section 1801 of the Subordinated Indenture) By reason of
that subordination, in the event of our insolvency, holders of Senior Debt may
receive more, ratably, and holders of the subordinated debt securities having a
claim pursuant to those securities may receive less, ratably, than our other
creditors. That subordination will not prevent the occurrence of any Event of
Default in respect of the subordinated debt securities.
CONVERSION OF SUBORDINATED CONVERTIBLE SECURITIES
The Holders of subordinated debt securities of a specified series that are
convertible into our common stock, preferred shares or depositary shares
("SUBORDINATED CONVERTIBLE SECURITIES") will be entitled at certain times
specified in the applicable prospectus supplement, subject to prior redemption,
repayment or repurchase, to convert any subordinated convertible securities of
that series (in denominations set forth in the applicable prospectus supplement)
into common stock, preferred shares or depositary shares, as the case may be, at
the conversion price set forth in the applicable prospectus supplement, subject
to adjustment as described below and in the applicable prospectus supplement.
Except as described below, no adjustment will be made on conversion of any
subordinated convertible securities for interest accrued on those securities or
for dividends on any common stock, preferred shares or depositary shares issued.
(Section 1903 of the Subordinated Indenture) If any subordinated convertible
securities (not called for redemption or submitted for repayment) are converted
between a Regular Record Date for the payment of interest and the next
succeeding Interest Payment Date, that subordinated convertible securities must
be accompanied by funds equal to the interest payable on that succeeding
Interest Payment Date on the principal amount so converted. (Section 1903 of the
Subordinated Indenture) We are not required to issue fractional shares of common
stock upon conversion of subordinated convertible securities that are
convertible into common stock. In lieu thereof, we will pay a cash adjustment
based upon the Closing Price (as defined in the Subordinated Indenture) of the
common stock on the last business day prior to the date of conversion. (Section
1904 of the Subordinated Indenture) In the case of subordinated convertible
securities called for redemption or submitted for repayment, conversion rights
will expire at the close of business on the redemption date or repayment date,
as the case may be. (Section 1902 of the Subordinated Indenture)
Unless otherwise indicated in the applicable prospectus supplement, the
conversion price for subordinated convertible securities that are convertible
into common stock is subject to adjustment under formulas set forth in the
Subordinated Indenture upon the occurrence of certain events, including the
issuance of our capital stock as a dividend or distribution on the common stock;
subdivisions and combinations of the common stock; the issuance to all holders
of common stock of certain rights or warrants entitling them to subscribe for or
purchase common stock, within 45 days after the date fixed for the determination
of the stockholders entitled to receive those rights or warrants, at less than
the current market price (as defined in the Subordinated Indenture); and the
distribution to all holders of common stock of evidences of our indebtedness or
assets (excluding certain cash dividends and distributions described in the next
paragraph) or rights or warrants (excluding those referred to above). (Section
1906 of the Subordinated Indenture)
In the event that we distribute any rights or warrants to acquire capital
stock ("CAPITAL STOCK RIGHTS") under which separate certificates representing
those capital stock rights will be distributed subsequent to the initial
distribution of those capital stock rights (whether or not that distribution
shall have occurred prior to the date of the issuance of a series of
subordinated convertible securities), that subsequent distribution shall be
deemed to be the distribution of those capital stock rights; provided that we
may, in
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lieu of making any adjustment in the conversion price upon a distribution of
separate certificates representing those capital stock rights, make proper
provision so that each Holder of such a subordinated convertible security who
converts that subordinated convertible security (or any portion thereof), (a)
before the record date for that distribution of separate certificates shall be
entitled to receive upon that conversion shares of common stock issued with
capital stock rights, and (b) after that record date and prior to the
expiration, redemption or termination of such capital stock rights, shall be
entitled to receive upon such conversion, in addition to the shares of common
stock issuable upon such conversion, the same number of those capital stock
rights as would a holder of the number of shares of common stock that such
subordinated convertible security so converted would have entitled the holder
thereof to acquire in accordance with the terms and provisions applicable to the
capital stock rights if that subordinated convertible security were converted
immediately prior to the record date for such distribution. Common stock owned
by or held for our account or any majority owned subsidiary will not be deemed
outstanding for the purpose of any adjustment. (Section 1906 of the Subordinated
Indenture)
No adjustment in the conversion price of subordinated convertible
securities that are convertible into common stock will be made for regular
quarterly or other periodic or recurring cash dividends or distributions or for
cash dividends or distributions to the extent paid from retained earnings. No
adjustment in the conversion price of subordinated convertible securities that
are convertible into common stock will be required unless that adjustment would
require a change of at least 1% in the conversion price then in effect, provided
that any adjustment not so made will be carried forward and taken into account
in any subsequent adjustment; and provided, further, that any adjustment not so
made will be made no later than three years after the occurrence of the event
requiring that adjustment to be made or carried forward. We reserve the right to
make those reductions in the conversion price in addition to those required in
the foregoing provisions as we, in our discretion, shall determine to be
advisable in order that certain stock-related distributions thereafter made by
us to our stockholders will not be taxable. (Section 1906 of the Subordinated
Indenture) Except as stated above, the conversion price will not be adjusted for
the issuance of common stock or any securities convertible into or exchangeable
for common stock, or securities carrying the right to purchase any of the
foregoing.
If we (a) reclassify or change the common stock, (b) consolidate or merge,
or (c) sell or convey all or substantially all of our property and assets to
another corporation, in each case as a result of which holders of common stock
will be entitled to receive stock, securities, other property or assets
(including cash) with respect to, or in exchange for, that common stock, the
Holders of the subordinated convertible securities then outstanding that are
convertible into common stock will be entitled thereafter to convert those
subordinated convertible securities into the kind and amount of shares of stock
and other securities or property which they would have received upon that
reclassification, change, consolidation, merger, sale or conveyance had that
subordinated convertible securities been converted into common stock immediately
prior to that reclassification, change, consolidation, merger, sale or
conveyance. (Section 1907 of the Subordinated Indenture)
In the event of a taxable distribution to holders of common stock which
results in any adjustment of the conversion price of subordinated convertible
securities that are convertible into common stock, the Holders of those
subordinated convertible securities may, in certain circumstances, be deemed to
have received a distribution subject to U.S. income tax as a dividend; in
certain other circumstances, the absence of such an adjustment may result in a
taxable dividend to the holders of common stock or those subordinated
convertible securities.
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DESCRIPTION OF PREFERRED SHARES
The following description of the terms of the preferred stock, par value
$1.00 per share (the "PREFERRED SHARES") sets forth certain general terms and
provisions of the preferred shares to which any prospectus supplement may
relate. Certain other terms of any series of preferred shares will be described
in the prospectus supplement. If so indicated in the prospectus supplement, the
terms of any of those series may differ from the terms set forth below. The
description of certain provisions of the preferred shares set forth below and in
any prospectus supplement does not purport to be complete and is subject to and
qualified in its entirety by reference to the certificate of designations
relating to each series of the preferred shares.
GENERAL
Pursuant to our Articles of Incorporation, our Board of Directors has the
authority, without further stockholder action, to issue from time to time a
maximum of preferred shares, including shares issued or reserved for issuance,
in one or more series and with such terms and at such times and for such
consideration as our Board of Directors may determine. The terms and conditions
of the preferred shares are governed by the laws of the state of Wisconsin as
well as by our Articles of Incorporation. The authority of our Board of
Directors includes the determination or fixing of the following with respect to
any series of preferred shares:
- the number of preferred shares and designation or title thereof;
- rights as to dividends;
- whether and upon what terms the preferred shares are to be redeemable;
- the rights of the holders upon our liquidation, dissolution, or winding
up;
- whether and upon what terms the preferred shares shall have a redemption,
purchase or retirement requirement, or sinking fund;
- whether and upon what terms the preferred shares are to be convertible;
- the voting rights, if any, which shall apply;
- whether we may issue the preferred shares as a share dividend; and
- any other term, condition or provision of such series.
No preferred shares are currently outstanding.
As described under "Description of Depositary Shares," we may, at our
option, elect to offer interests in preferred shares by depositary shares
("DEPOSITARY SHARES") evidenced by depositary receipts ("DEPOSITARY RECEIPTS"),
each representing a fractional interest (to be specified in the prospectus
supplement relating to the particular series of the preferred shares) in a share
of the particular series of the preferred shares issued and deposited with a
bank or trust company selected by us having its principal executive office in
the United States and having a combined capital and surplus of at least
$50,000,000 (the "DEPOSITARY").
The preferred shares will have the dividend, liquidation, redemption,
voting and conversion rights discussed below unless otherwise provided in the
prospectus supplement relating to a particular series of the preferred shares.
For information concerning legal limitations on the ability of one of our banks
to supply funds to us, see "Certain Regulatory Matters."
The prospectus supplement relating to the particular series of the
preferred shares offered thereby may include certain specific terms, including:
- the title, stated value and liquidation preference of those preferred
shares and the number of preferred shares offered;
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- the initial public offering price at which those preferred shares will be
issued;
- the dividend rate or rates (or method of calculation), the dividend
periods, the dates on which dividends will be payable, and whether those
dividends will be cumulative or noncumulative and, if cumulative, the
dates from which dividends will commence to cumulate;
- any repurchase, redemption or sinking fund provisions;
- any conversion provisions;
- whether we elect to offer depositary shares; and
- any additional dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitations and restrictions.
The preferred shares will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the prospectus supplement relating to a particular
series of the preferred shares, each series of the preferred shares will rank on
a parity in all respects with each other series of the preferred shares and will
rank senior to our series A junior participating preferred stock described
below. The preferred shares will have no preemptive rights to subscribe for any
additional securities which we may issue. Unless otherwise specified in the
applicable prospectus supplement, Firstar Bank, N.A. will be the transfer agent
and registrar for the preferred shares and any depositary shares.
Unless otherwise specified in the applicable prospectus supplement, the
preferred shares will rank senior to the series A junior participating preferred
stock as to the payment of dividends and the distribution of assets. The common
stock, including the common stock that may be issued upon conversion of the
preferred shares or in exchange for, or upon conversion of, subordinated debt
securities, will be subject to any prior rights of the preferred shares then
outstanding.
DIVIDENDS
The holders of the preferred shares of each series will be entitled to
receive, when, as and if declared by our Board of Directors or a duly authorized
committee thereof, out of funds legally available therefor, cash dividends at
those rates and on those dates as will be set forth in the prospectus supplement
relating to that series. Those rates may be fixed or variable or both. If
variable, the formula used for determining the dividend rate for each dividend
period will be set forth in the prospectus supplement. Dividends will be payable
to the holders of record as they appear on our stock books on those record dates
as will be fixed by our Board of Directors or a duly authorized committee
thereof.
Dividends on any series of the preferred shares may be cumulative or
noncumulative, as provided in the applicable prospectus supplement. If our Board
of Directors fails to declare a dividend payable on a dividend payment date on
any series of the preferred shares for which dividends are noncumulative
("NONCUMULATIVE PREFERRED SHARES"), then the holders of that series of the
preferred shares will have no right to receive a dividend in respect of the
dividend period ending on that dividend payment date, and we will have no
obligation to pay the dividend accrued for that period, whether or not dividends
on that series are declared payable on any future dividend payment dates.
No full dividends may be declared or paid or set apart for payment on any
of our capital stock that ranks, as to dividends, on a parity with or junior to
the preferred shares for any period unless full dividends on the preferred
shares of each series (including any accumulated dividends) have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for that payment. When dividends are not paid in full
upon any series of preferred shares, all dividends declared or made upon
preferred shares of each series will be declared pro rata so that the amount of
dividends declared per share on preferred shares of each series will in all
cases bear to each other the same ratio that accrued dividends per share (which,
in the case of noncumulative preferred shares, will not include any accumulation
in respect of unpaid dividends for prior dividend periods) on
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shares of each series of the preferred shares bear to each other. Except as
provided in the preceding sentence, no dividend (other than dividends or
distributions paid in shares of, or options, warrants or rights to subscribe for
or purchase shares of, common stock or any other capital stock of ours that
ranks junior to the preferred shares as to dividends and upon liquidation) will
be declared or paid, or set aside for payment or other distribution declared or
made upon the common stock or any other capital stock of ours that ranks junior
to, or on a parity with, the preferred shares as to dividends or upon
liquidation, nor shall any common stock, nor any other capital stock of ours
that ranks junior to or on a parity with the preferred shares as to dividends or
upon liquidation, be redeemed, purchased or otherwise acquired for any
consideration (or that any money be paid to or made available for a sinking fund
for the redemption of any shares of that stock) by us (except by conversion into
or exchange for capital stock of ours that ranks junior to the preferred shares
as to dividends and upon liquidation) unless, in each case, the full dividends
on each series of the preferred shares shall have been paid, or declared and set
aside for payment. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on any series of the
preferred shares which may be in arrears.
REDEMPTION
A series of the preferred shares may be redeemable, in whole or in part, at
our option, and may be subject to mandatory redemption pursuant to a sinking
fund or otherwise, in each case, upon terms, at the times and at the redemption
prices set forth in the prospectus supplement relating to that series. Preferred
shares redeemed by us will be restored to the status of authorized but unissued
preferred shares.
The prospectus supplement relating to a series of the preferred shares
which is subject to mandatory redemption will specify the number of shares of
that series which shall be redeemed by us in each year commencing after a date
to be specified, at a redemption price per share to be specified, together with
an amount equal to all accrued and unpaid dividends on those preferred shares to
the date of redemption. The redemption price may be payable in cash or other
property, as specified in the prospectus supplement relating to that series of
the preferred shares. If the redemption price is payable only from the net
proceeds of the issuance of our capital stock, the terms of that series may
provide that, if no such capital stock shall have been issued or to the extent
the net proceeds from any issuance are insufficient to pay in full the aggregate
redemption price then due, the applicable shares of that series of the preferred
shares will automatically and mandatorily be converted into shares of our
applicable capital stock pursuant to conversion provisions specified in the
prospectus supplement relating to that series of the preferred shares.
If fewer than all of the outstanding shares of any series of the preferred
shares are to be redeemed, the number of preferred shares to be redeemed will be
determined by our Board of Directors and those preferred shares will be redeemed
pro rata from the holders of record of those preferred shares in proportion to
the number of those preferred shares held by those holders (with adjustments to
avoid redemption of fractional shares).
Notwithstanding the foregoing, if any dividends, including any
accumulation, on preferred shares of any series are in arrears, no preferred
shares of that series will be redeemed unless all outstanding preferred shares
of that series are simultaneously redeemed, and we are prohibited from
purchasing or otherwise acquiring any preferred shares of that series; provided,
however, that the foregoing will not prevent the purchase or acquisition of
preferred shares of that series pursuant to a purchase or exchange offer,
provided that that offer is made on the same terms to all holders of that series
of the preferred shares.
Notice of redemption will be given by mailing the same to each record
holder of the preferred shares to be redeemed, not less than 30 nor more than 60
days prior to the date fixed for redemption of those preferred shares to the
respective addresses of such holders as the same shall appear on our stock
books. Each such notice shall state:
- the redemption date;
- the number of preferred shares and series of the preferred shares to be
redeemed;
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- the redemption price;
- the place or places where certificates for the preferred shares are to be
surrendered for payment of the redemption price;
- that dividends on the preferred shares to be redeemed will cease to
accrue on such redemption date; and
- the date upon which the holder's conversion rights as to the preferred
shares, if any, shall terminate.
If fewer than all preferred shares of any series of the preferred shares
held by any holder are to be redeemed, the notice mailed to that holder will
also specify the number or percentage of preferred shares to be redeemed from
that holder.
If notice of redemption has been given, from and after the redemption date
for the shares of the series of the preferred shares called for redemption
(unless we default in providing money for the payment of the redemption price of
the preferred shares so called for redemption), dividends on the preferred
shares so called for redemption will cease to accrue and those preferred shares
will no longer be deemed to be outstanding, and all rights of the holders of
those preferred shares as our stockholders (except the right to receive the
redemption price) will cease. Upon surrender in accordance with such notice of
the certificates representing any preferred shares so redeemed (properly
endorsed or assigned for transfer, if our Board of Directors so requires and the
notice shall so state), the redemption price set forth above will be paid out of
funds provided by us. If fewer than all of the preferred shares represented by
any such certificate are redeemed, a new certificate will be issued representing
the unredeemed preferred shares without cost to the holder of those preferred
shares.
In the event that a redemption described above is deemed to be a "tender
offer" within the meaning of Rule 14e-1 under the Exchange Act, we will comply
with all applicable provisions of the Securities and Exchange Act of 1934, as
amended (the "EXCHANGE ACT").
CONVERSION
The prospectus supplement relating to a series of the preferred shares
which is convertible will state the terms on which preferred shares of that
series are convertible into shares of common stock or a series of preferred
shares.
RIGHTS UPON LIQUIDATION
In the event of our voluntary or involuntary liquidation, dissolution or
winding up, the holders of shares of each series of the preferred shares upon
liquidation will be entitled to receive out of our assets available for
distribution to stockholders, before any distribution of assets is made to
holders of the common stock or any other class or series of our capital stock
that ranks junior to such series of the preferred shares upon liquidation,
liquidation distributions in the amount set forth in the prospectus supplement
relating to that series of the preferred shares plus an amount equal to the sum
of all accrued and unpaid dividends (whether or not earned or declared) for the
then current dividend period and, if that series of the preferred shares is
cumulative, for all dividend periods prior thereto. Neither the sale of all or
substantially all of our property and assets, nor our merger or consolidation
into or with any other corporation nor the merger or consolidation of any other
corporation into or with us, will be deemed to be a dissolution, liquidation or
winding up. If, upon our voluntary or involuntary liquidation, dissolution or
winding up, our assets available for distribution to the holders of the
preferred shares of any series are insufficient to pay in full all amounts to
which those holders are entitled, no such distribution will be made on account
of any shares of any other series of the preferred shares unless proportionate
distributive amounts shall be paid on account of the preferred shares of that
series, ratably, in proportion to the full distributive amounts for which
holders of all such parity shares are respectively entitled upon such
dissolution, liquidation or winding up. After payment of the full amount of the
liquidation distribution to
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which they are entitled, the holders of that series of the preferred shares will
have no right or claim to any of our remaining assets.
VOTING RIGHTS
Except as indicated below or in the prospectus supplement relating to a
particular series of the preferred shares, or except as expressly required by
applicable law, the holders of the preferred shares will not be entitled to
vote. In the event we issue shares of a series of the preferred shares, unless
otherwise indicated in the prospectus supplement relating to that series, each
share will be entitled to one vote on matters on which holders of that series
are entitled to vote. However, as more fully described under "Description of
Depositary Shares," if we elect to provide for the issuance of depositary shares
representing fractional interests in a share of that series of the preferred
shares, the holders of each such depositary share will, in effect, be entitled
through the Depositary to a fraction of a vote, rather than a full vote. In the
case of any series of preferred shares having one vote per share on matters on
which holders of that series are entitled to vote, the voting power of that
series, on matters on which holders of that series and holders of any other
series of preferred shares are entitled to vote as a single class, will depend
on the number of shares in that series, not the aggregate stated value,
liquidation preference or initial offering price of the shares of that series of
the preferred shares.
Under interpretations adopted by the Federal Reserve Board, if the holders
of any series of the preferred shares become entitled to vote for the election
of directors because dividends on such series are in arrears, that series may
then be deemed a "class of voting securities" and a holder of 25% or more of
that series (or a holder of 5% or more if it otherwise exercises a "controlling
influence" over us) may then be subject to regulation as a bank holding company
in accordance with the BHCA. In addition, at the time that series is deemed a
class of voting securities, any other bank holding company may be required to
obtain the prior approval of the Federal Reserve Board to acquire 5% or more of
that series, and any person other than a bank holding company may be required to
obtain the prior approval of the Federal Reserve Board to acquire 10% or more of
that series.
So long as any preferred shares of any series remain outstanding, we will
not, without the consent of the holders of the outstanding preferred shares of
that series, by a vote of at least two-thirds of all those outstanding preferred
shares voting together as a class, given in person or by proxy, either in
writing or at a meeting, (a) authorize, create or issue, or increase the
authorized or issued amount of, any class or series of stock ranking prior to
the preferred shares with respect to payment of dividends or the distribution of
assets on liquidation, dissolution or winding up, or (b) amend, alter or repeal,
whether by merger, consolidation or otherwise, the provisions of our Articles of
Incorporation or of the resolutions contained in a Certificate of Designations
for any series of the preferred shares designating that series of the preferred
shares and the preferences and relative, participating, optional or other
special rights and qualifications, limitations and restrictions thereof, so as
to adversely affect any right, preference, privilege or voting power of the
preferred shares or the holders of the preferred shares.
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DESCRIPTION OF DEPOSITARY SHARES
The following description and any description in any prospectus supplement
of certain provisions of the Deposit Agreement and of the depositary shares and
depositary receipts is a summary and does not purport to be complete. The
summary is qualified in its entirety by reference to the Deposit Agreement and
depositary receipts relating to each series of the preferred shares, a form of
which is filed as an exhibit to the registration statement to which this
prospectus pertains.
GENERAL
We may, at our option, elect to offer fractional interests in preferred
shares, rather than full preferred shares. If we exercise this option, we will
provide for the issuance to the public by a Depositary of depositary receipts
evidencing depositary shares, each of which will represent a fractional interest
(to be set forth in the prospectus supplement relating to a particular series of
the preferred shares) in a share of a particular series of the preferred shares
as described below.
The shares of any series of the preferred shares underlying the depositary
shares will be deposited under a separate deposit agreement (the "DEPOSIT
AGREEMENT") between us and the Depositary. The prospectus supplement relating to
a series of depositary shares will set forth the name and address of the
principal executive office of the Depositary. Subject to the terms of the
Deposit Agreement, each owner of a depositary share will be entitled, in
proportion to the applicable fractional interest in a preferred share underlying
that depositary share, to all the rights and preferences of the preferred shares
underlying that depositary share (including dividend, voting, redemption,
conversion and liquidation rights).
Pending the preparation of definitive engraved depositary receipts, the
Depositary may, upon our written order, issue temporary depositary receipts
substantially identical to (and entitling the holders thereof to all the rights
pertaining to) the definitive depositary receipts but not in definitive form.
Definitive depositary receipts will be prepared thereafter without unreasonable
delay, and temporary depositary receipts will be exchangeable for definitive
depositary receipts at our expense.
Upon surrender of the depositary receipts at the principal office of the
Depositary (unless the related depositary shares have previously been called for
redemption), the owner of the depositary shares evidenced thereby is entitled to
delivery at such office, to or upon his order, of the number of preferred shares
and any money or other property represented by those depositary shares. Partial
preferred shares will not be issued. If the depositary receipts delivered by the
holder evidence a number of depositary shares in excess of the number of
depositary shares representing the number of whole preferred shares to be
withdrawn, the Depositary will deliver to that holder at the same time a new
depositary receipt evidencing the excess number of depositary shares. Holders of
preferred shares thus withdrawn will not thereafter be entitled to deposit such
shares under the Deposit Agreement or to receive depositary shares therefor. We
do not expect that there will be any public trading market for the preferred
shares represented by depositary receipts except as represented by the
depositary shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the preferred shares to the record holders
of depositary shares relating to such preferred shares in proportion to the
numbers of such depositary shares owned by such holders on the relevant record
date. The Depositary will distribute only such amount, however, as can be
distributed without attributing to any holder of depositary shares a fraction of
one cent, and any balance not so distributed will be added to and treated as
part of the next sum received by the Depositary for distribution to record
holders of depositary shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of depositary shares
entitled to that property, unless the Depositary determines that it is not
feasible to make that distribution, in which case the Depositary may, with our
approval, sell such property and distribute the net proceeds from that sale to
the holders.
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The Deposit Agreement will also contain provisions relating to the manner
in which any subscription or similar rights offered by us to holders of the
preferred shares will be made available to holders of depositary shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of the preferred shares underlying the depositary shares is
subject to redemption, the depositary shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of that series of the preferred shares held by the Depositary. The Depositary
will mail notice of redemption not less than 30 and not more than 60 days prior
to the date fixed for redemption to the record holders of the depositary shares
to be so redeemed at their respective addresses appearing in the Depositary's
books. The redemption price per depositary share will be equal to the applicable
fraction of the redemption price per share payable with respect to such series
of the preferred shares. Whenever we redeem preferred shares held by the
Depositary, the Depositary will redeem as of the same redemption date the number
of depositary shares relating to the preferred shares so redeemed. If less than
all the depositary shares are to be redeemed, the depositary shares to be
redeemed will be selected by lot or pro rata as may be determined by the
Depositary.
After the date fixed for redemption, the depositary shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the depositary shares will cease, except the right to receive the
moneys payable upon that redemption and any money or other property to which the
holders of those depositary shares were entitled upon that redemption, upon
surrender to the Depositary of the depositary receipts evidencing those
depositary shares.
VOTING THE PREFERRED SHARES
Upon receipt of notice of any meeting at which the holders of the preferred
shares are entitled to vote, the Depositary will mail the information contained
in that notice of meeting to the record holders of the depositary shares
relating to those preferred shares. Each record holder of those depositary
shares on the record date (which will be the same date as the record date for
the preferred shares) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the number of shares of preferred
shares underlying that holder's depositary shares. The Depositary will endeavor,
insofar as practicable, to vote the number of preferred shares underlying those
depositary shares in accordance with those instructions, and we will agree to
take all action which may be deemed necessary by the Depositary in order to
enable the Depositary to do so. The Depositary will abstain from voting
preferred shares to the extent it does not receive specific instructions from
the holders of depositary shares relating to those preferred shares.
TAXATION
Owners of depositary shares will be treated for U.S. federal income tax
purposes as if they were owners of the preferred shares represented by those
depositary shares, and, accordingly, will be entitled to take into account for
U.S. federal income tax purposes income and deductions to which they would be
entitled if they were holders of those preferred shares. In addition,
- no gain or loss will be recognized for U.S. federal income tax purposes
upon the withdrawal of preferred shares in exchange for depositary shares
as provided in the Deposit Agreement;
- the tax basis of each preferred share to an exchanging owner of
depositary shares will, upon such exchange, be the same as the aggregate
tax basis of the depositary shares exchanged therefor; and
- the holding period for the preferred shares in the hands of an exchanging
owner of depositary shares will include the period during which that
person owned those depositary shares.
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AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT
The form of depositary receipt evidencing the depositary shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between us and the Depositary. However, any amendment which materially and
adversely alters the rights of the existing holders of depositary shares will
not be effective unless that amendment has been approved by the record holders
of at least a majority of the depositary shares then outstanding. A Deposit
Agreement may be terminated by us or the Depositary only if (a) all outstanding
depositary shares relating thereto have been redeemed, or (b) there has been a
final distribution in respect of the preferred shares of the relevant series in
connection with any liquidation, dissolution or winding up of Firstar, and that
distribution has been distributed to the holders of the related depositary
shares.
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will pay charges of
the Depositary in connection with the initial deposit of the preferred shares
and any redemption of the preferred shares. Holders of depositary shares will
pay other transfer and other taxes and governmental charges and those other
charges as are expressly provided in the Deposit Agreement to be for their
accounts.
MISCELLANEOUS
The Depositary will forward to the holders of depositary shares all reports
and communications from us which are delivered to the Depositary and which we
are required to furnish to the holders of the preferred shares.
Neither us nor the Depositary will be liable if either of us is prevented
or delayed by law or any circumstance beyond its control in performing our
obligations under the Deposit Agreement. Our obligations and those of the
Depositary under the Deposit Agreement will be limited to performance in good
faith of our duties thereunder and we will not be obligated to prosecute or
defend any legal proceeding in respect of any depositary shares or preferred
shares unless satisfactory indemnity is furnished. We may rely upon written
advice of counsel or accountants, or information provided by persons presenting
preferred shares for deposit, holders of depositary shares, or other persons
believed to be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to us notice of its
election to do so, and we may at any time remove the Depositary, any such
resignation or removal to take effect upon the appointment of a successor
Depositary and its acceptance of that appointment. A successor Depositary must
be appointed within 60 days after delivery of the notice of resignation or
removal and must be a bank or trust company having its principal office in the
United States and having a combined capital and surplus of at least $50,000,000.
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DESCRIPTION OF COMMON STOCK
GENERAL
Our Board of Directors is authorized to issue a maximum of 800,000,000
shares of common stock. As of March 31, 1999, approximately 661,214,244 shares
of common stock were issued and outstanding. The terms and conditions of the
common stock are governed by the laws of the State of Wisconsin as well as by
our Articles of Incorporation.
Subject to any prior rights of any preferred shares then outstanding,
holders of the common stock are entitled to receive such dividends as are
declared by our Board of Directors out of funds legally available for those
dividends. For information concerning legal limitations on the ability of our
banks to supply funds to us, see "Certain Regulatory Matters." Subject to the
rights, if any, of any preferred shares then outstanding, all voting rights are
vested in the holders of common stock. Holders of common stock are entitled to
one vote per share on all matters to be voted upon by our shareholders.
The common stock has no preemptive rights. The transfer agent and registrar
for the common stock is Firstar Bank Milwaukee N.A.
RIGHTS PLAN
Each share of common stock outstanding (and each share issued by us prior
to the occurrence of certain events) carries with it one preferred stock
purchase right to purchase, at a price of $300.00, one-hundredth of a share of
our series A junior participating preferred stock. The preferred stock purchase
rights are exercisable only if a person or group (an "ACQUIRING PERSON")
acquires or obtains the right to acquire ownership of 15% or more of our common
stock, commences a tender or exchange offer for 15% or more of the common stock
or is declared an Acquiring Person by our Board of Directors. We are entitled to
redeem the preferred stock purchase rights at a price of one cent per preferred
stock purchase right at any time before the date a 15% position has been
acquired.
Each preferred stock purchase right entitles its holder (other than an
Acquiring Person) to purchase common stock having a market value at that time of
twice the preferred stock purchase right's exercise price under certain
circumstances where a person or group has acquired a 15% block of our common
stock or commenced a tender or exchange offer for 15% or more of our common
stock. The plan also allows our Board of Directors to lower the threshold to not
less than 10% if appropriate in light of specific circumstances. The preferred
stock purchase rights also provide a similar right for holders (other than an
Acquiring Person) to purchase, at the preferred stock purchase right's
then-current exercise price, a number of the acquiring company's common shares
having a market value at that time of twice the preferred stock purchase right's
exercise price.
As long as the preferred stock purchase rights are attached to and
evidenced by the certificates representing the common stock, we will continue to
issue one preferred stock purchase right with each share of common stock that
shall become outstanding. A preferred stock purchase right is presently attached
to each issued and outstanding share of common stock. The preferred stock
purchase rights will expire on December 1, 2008 unless earlier redeemed.
The preferred stock purchase rights have certain antitakeover effects. The
preferred stock purchase rights may cause substantial dilution to a person or
group that attempts to acquire us on terms not approved by our Board of
Directors. The preferred stock purchase rights should not interfere with any
merger or other business combination approved by our Board of Directors since
they may be redeemed by us prior to the consummation of that transaction.
The rights agreement has been filed by us as an exhibit to our Form 8-A
dated as of December 1, 1998. The description of the preferred stock purchase
rights found in the foregoing Form 8-A has been incorporated by reference herein
and copies of that Form 8-A can be obtained in the manner set forth under "Where
You Can Find More Information."
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DESCRIPTION OF SECURITIES WARRANTS
We may issue securities warrants for the purchase of debt securities,
preferred shares, depositary shares or common stock. Securities warrants may be
issued independently or together with debt securities, preferred shares or
depositary shares offered by any prospectus supplement and may be attached to or
separate from those debt securities, preferred shares or depositary shares. Each
series of securities warrants will be issued under a separate warrant agreement
(a "SECURITIES WARRANT AGREEMENT") to be entered into by us and a bank or trust
company, as securities warrant agent (the "SECURITIES WARRANT AGENT"), all as
set forth in the prospectus supplement relating to the particular issue of
offered securities warrants. The Securities Warrant Agent will act solely as our
agent in connection with securities warrant certificates (the "SECURITIES
WARRANT CERTIFICATES") and will not assume any obligation or relationship of
agency or trust for or with any holders of securities warrant certificates or
beneficial owners of securities warrants. Copies of the forms of Securities
Warrant Agreements, including the forms of securities warrant certificates
representing the securities warrants, are filed as exhibits to the registration
statement to which this prospectus pertains. The following summaries of certain
provisions of the forms of Securities Warrant Agreements and securities warrant
certificates do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, all the provisions of the Securities Warrant
Agreements and the securities warrant certificates.
GENERAL
If securities warrants are offered, the applicable prospectus supplement
will describe the terms of those securities warrants, including, in the case of
securities warrants for the purchase of debt securities, the following where
applicable:
- the offering price and exercise price;
- the currencies in which those securities warrants are being offered;
- the designation, aggregate principal amount, currencies, denominations
and terms of the series of debt securities purchasable upon exercise of
those securities warrants;
- the designation and terms of any series of debt securities, preferred
shares or depositary shares with which those securities warrants are
being offered and the number of those securities warrants being offered
with each debt security, preferred share or depositary share;
- the date on and after which those securities warrants and the related
series of debt securities, preferred shares or depositary shares will be
transferable separately;
- the principal amount of the series of debt securities purchasable upon
exercise of each securities warrant and the price at which and currencies
in which the principal amount of debt securities of that series may be
purchased upon such exercise;
- the date on which the right to exercise those securities warrants shall
commence and the date on which that right shall expire (the "EXPIRATION
DATE");
- whether the securities warrants will be issued in registered or bearer
form;
- U.S. federal income tax consequences; and
- any other terms of those securities warrants.
In the case of securities warrants for the purchase of preferred shares,
depositary shares or common stock, the applicable prospectus supplement will
describe the terms of those securities warrants, including the following where
applicable:
- the offering price and exercise price;
- the aggregate number of shares purchasable upon exercise of those
securities warrants and, in the case of securities warrants for preferred
shares or depositary shares, the designation, aggregate
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number and terms of the series of preferred shares purchasable upon
exercise of those securities warrants or underlying the depositary shares
purchasable upon exercise of those securities warrants;
- the designation and terms of the series of debt securities, preferred
shares or depositary shares with which those securities warrants are
being offered, and the number of those securities warrants being offered
with each such debt security, preferred share or depositary share;
- the date on and after which those securities warrants and the related
series of debt securities, preferred shares or depositary shares will be
transferable separately;
- the number of preferred shares, depositary shares or shares of common
stock purchasable upon exercise of each securities warrant and the price
at which that number of preferred shares or depositary shares of that
series or shares of common stock may be purchased upon each exercise;
- the date on which the right to exercise those securities warrants will
commence and the expiration date;
- U.S. federal income tax consequences; and
- any other terms of those securities warrants.
Securities warrants for the purchase of preferred shares, depositary shares
or common stock will be offered and exercisable for U.S. dollars only and will
be in registered form only.
Securities warrant certificates may be exchanged for new securities warrant
certificates of different denominations, may (if in registered form) be
presented for registration of transfer, and may be exercised at the corporate
trust office of the securities warrant agent or any other office indicated in
the applicable prospectus supplement. Prior to the exercise of any securities
warrant to purchase debt securities, holders of those securities warrants will
not have any of the rights of holders of the debt securities purchasable upon
exercise of those securities warrants, including the right to receive payments
of principal of, premium, if any, or interest, if any, on the debt securities
purchasable upon that exercise, or to enforce covenants in the applicable
indenture. Prior to the exercise of any securities warrants to purchase
preferred shares, depositary shares or common stock, holders of those securities
warrants will not have any rights of holders of the preferred shares, depositary
shares or common stock purchasable upon such exercise, including the right to
receive payments of dividends, if any, on the preferred shares, depositary
shares or common stock purchasable upon such exercise or to exercise any
applicable right to vote.
EXERCISE OF SECURITIES WARRANTS
Each securities warrant will entitle the holder thereof to purchase that
principal amount of debt securities or number of preferred shares, depositary
shares or shares of common stock, as the case may be, at such exercise price as
shall in each case be set forth in, or calculable from, the prospectus
supplement relating to the offered securities warrants. After the close of
business on the expiration date (or such later date to which such expiration
date may be extended by us), unexercised securities warrants will become void.
Securities warrants may be exercised by delivering to the securities
warrant agent payment as provided in the applicable prospectus supplement of the
amount required to purchase the debt securities, preferred shares, depositary
shares or common stock, as the case may be, purchasable upon such exercise
together with certain information set forth on the reverse side of the
securities warrant certificate. Securities warrants will be deemed to have been
exercised upon receipt of payment of the exercise price, subject to the receipt,
within five business days, of the securities warrant certificate evidencing
those securities warrants. Upon receipt of that payment and the securities
warrant certificate properly completed and duly executed at the corporate trust
office of the Securities Warrant Agent or any other office indicated in the
applicable prospectus supplement, we will, as soon as practicable, issue and
deliver the debt securities, preferred shares, depositary shares or common
stock, as the case may be, purchasable upon that exercise. If fewer than all of
the securities warrants represented by that securities warrant certificate
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are exercised, a new securities warrant certificate will be issued for the
remaining amount of securities warrants.
AMENDMENTS AND SUPPLEMENTS TO SECURITIES WARRANT AGREEMENTS
The Securities Warrant Agreements may be amended or supplemented without
the consent of the holders of the securities warrants issued under those
agreements to effect changes that are not inconsistent with the provisions of
the securities warrants and that do not adversely affect the interests of the
holders of the securities warrants.
COMMON STOCK WARRANT ADJUSTMENTS
Unless otherwise indicated in the applicable prospectus supplement, the
exercise price of, and the number of shares of common stock covered by, a common
stock warrant are subject to adjustment in certain events, including:
- the issuance of capital stock as a dividend or distribution on the common
stock;
- subdivisions and combinations of the common stock;
- the issuance to all holders of common stock of rights or warrants
entitling them to subscribe for or purchase common stock within 45 days
after the date fixed for the determination of the stockholders entitled
to receive those rights or warrants, at less than the Current Market
Price (as defined in the Securities Warrant Agreement for that series of
common stock warrants); and
- the distribution to all holders of common stock of our evidences of
indebtedness or assets (excluding certain cash dividends and
distributions described below) or rights or warrants (excluding those
referred to above).
In the event that we distribute any rights or warrants to acquire capital
stock pursuant to the penultimate clause set forth above (the "CAPITAL STOCK
RIGHTS"), pursuant to which separate certificates representing those capital
stock rights will be distributed subsequent to the initial distribution of those
capital stock rights (whether or not that distribution shall have occurred prior
to the date of the issuance of a series of common stock warrants), that
subsequent distribution will be deemed to be the distribution of those capital
stock rights; provided that we may, in lieu of making any adjustment in the
exercise price of and the number of shares of common stock covered by a common
stock warrant upon a distribution of separate certificates representing those
capital stock rights, make proper provision so that each holder of such a common
stock warrant who exercises that common stock warrant (or any portion of that
common stock warrant), (a) before the record date for the distribution of
separate certificates will be entitled to receive upon that exercise shares of
common stock issued with capital stock rights, and (b) after that record date
and prior to the expiration, redemption or termination of those capital stock
rights, will be entitled to receive upon that exercise, in addition to the
shares of common stock issuable upon that exercise, the same number of those
capital stock rights as would a holder of the number of shares of common stock
that such common stock warrant so exercised would have entitled the holder
thereof to acquire in accordance with the terms and provisions applicable to the
capital stock rights if that common stock warrant was exercised immediately
prior to the record date for that distribution. Common stock owned by or held
for our account or the account of any majority owned subsidiary of ours shall
not be deemed outstanding for the purpose of any adjustment.
No adjustment in the exercise price of and the number of shares of common
stock covered by a common stock warrant will be made for regular quarterly or
other periodic or recurring cash dividends or distributions, or for cash
dividends or distributions to the extent paid from retained earnings. No
adjustment will be required unless that adjustment would require a change of at
least 1% in the exercise price then in effect; provided, that any adjustment not
so made will be carried forward and taken into account in any subsequent
adjustment; provided, further, that any adjustment not so made shall be made no
later than three years after the occurrence of the event requiring that
adjustment to be made or carried forward. Except as stated above, the exercise
price of and the number of shares of common stock covered
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by a common stock warrant will not be adjusted for the issuance of common stock
or any securities convertible into or exchangeable for common stock, or
securities carrying the right to purchase any of the foregoing.
In the case of (a) a reclassification or change of the common stock, (b) a
consolidation or merger involving us, or (c) our sale or conveyance to another
corporation of our property and assets as an entirety or substantially as an
entirety, in each case, as a result of which holders of our common stock will be
entitled to receive stock, securities, other property or assets (including cash)
with respect to, or in exchange for, their common stock, the holders of the
common stock warrants then outstanding will be entitled thereafter to convert
those common stock warrants into the kind and amount of shares of stock and
other securities or property which they would have received upon such
reclassification, change, consolidation, merger, sale or conveyance had those
common stock warrants been exercised immediately prior to that reclassification,
change, consolidation, merger, sale or conveyance.
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EUROPEAN MONETARY UNION
Stage III of the European Economic and Monetary Union ("STAGE III")
commenced on January 1, 1999 for those member states of the European Union that
satisfied the economic convergence criteria set forth in the Treaty on European
Union. On March 25, 1998, the European Commission officially recommended that
eleven of the member states of the European Union be allowed to participate in
Stage III; these eleven member states are Austria, Belgium, Finland, France,
Germany, Ireland, Italy, Luxembourg, the Netherlands, Portugal and Spain
(collectively, the "PARTICIPATING MEMBER STATES"). It is possible that
additional member states of the European Union may participate in Stage III in
the future, in which case each such additional member state will also become a
"Participating Member State." Certain of the foreign currencies in which debt
securities may be denominated or payments in respect of debt warrants may be due
or by which amounts due on the offered securities may be calculated may be
issued by Participating Member States (each such country, a "RELEVANT
JURISDICTION" with respect to such offered securities). Stage III includes the
introduction of a single currency (the "EURO") which will be legal tender in the
Participating Member States, existing in parallel with the present national
currency of each Participating Member State. It is currently anticipated that on
and after January 1, 2002, the national currencies of Participating Member
States will cease to exist and the sole legal tender in such states will be the
Euro. It is anticipated that the European Union will adopt regulations or other
legislation providing specific rules for the introduction of the Euro in
substitution for the respective current national currencies of such member
states, which regulations or legislation may be supplemented by legislation of
the individual member states. The laws and regulations of the European Union
(and, if any, of such Relevant Jurisdiction) relating to the Euro implemented
pursuant to or by virtue of the Treaty on European Union may apply to certain of
the securities offered pursuant to this prospectus or the Indentures. Such laws
and regulations, and future market conventions applicable in the European Union
to securities similar to the relevant offered securities, may be inconsistent in
varying degrees with the terms and conditions of the relevant offered securities
established at their issuance. To the extent that references in an Indenture or
any relevant offered securities or in the terms and conditions of any relevant
offered securities to any business day, day-count, day-count fraction or other
convention are inconsistent with such European Union laws, regulations or market
conventions that are applicable to securities similar to the relevant offered
securities held in international clearing systems, we, in our discretion (but
after consultation with the applicable trustee or warrant agent, and with any
principal paying agent located in a European Union member state), may amend such
references and terms and conditions to be in harmony with, or to otherwise
comply with, such laws, regulations and/or market conventions. Any such
amendment will be effected without the necessity of obtaining the consent of any
holder of the relevant offered securities.
If, following the commencement of Stage III, we have the option, pursuant
to applicable law, to make payments of principal of, or interest on, or any
other amounts in respect of, the relevant offered securities, or to calculate
amounts due thereon, in either the current national currency of a Relevant
Jurisdiction or Euro, we will make those payments or calculations in that
national currency or Euro in our sole discretion. To the extent that the
introduction of the Euro necessitates the rounding up or down of certain amounts
or quotations expressed in Euros with respect to the relevant offered
securities, that rounding will be made in conformity with prevailing market
conventions in the European Union or, in the absence of an applicable market
convention, to the nearest Euro cent.
The circumstances and consequences described in this section and any
resultant amendment to the terms and conditions of the relevant offered
securities will not entitle any holder of those offered securities (a) to any
legal remedy, including, without limitation, redemption, rescission, notice,
repudiation, adjustment or renegotiation of the terms and conditions of the
offered securities or an Indenture, or (b) to raise any defense or make any
claim (including, without limitation, claims of breach, force majeure,
frustration of purpose or impracticability) or any other claim for compensation,
damages or any other relief.
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PLAN OF DISTRIBUTION
We may sell the securities offered pursuant to this prospectus in any of
two ways: (a) through agents or underwriters, or (b) directly to one or more
purchasers. The prospectus supplement will supply the details of the plan of
distribution, including the name or names of any underwriters or agents, the
purchase price of those offered securities, our proceeds from the sale, any
underwriting discounts or agency fees and other items constituting underwriters'
or agents' compensation, the initial public offering price, any discounts or
concessions allowed or reallowed or paid to dealers, and any securities
exchanges on which those offered securities may be listed.
Underwriters, dealers and agents that participate in the distribution of
the securities offered pursuant to this prospectus may be underwriters as
defined in the Securities Act. Any discounts or commissions they receive from us
and any profits they receive on the resale of the offered securities may be
treated as underwriting discounts and commissions under the Securities Act. We
have agreements with the underwriters and agents to indemnify them against
certain civil liabilities, including liabilities under the Securities Act.
Agents and underwriters may engage in transactions with, or perform services
for, us in the ordinary course of business. This includes commercial banking and
investment banking transactions.
If underwriters are used in the sale, they will acquire the securities
offered pursuant to this prospectus for their own account. The underwriters will
resell the securities in one or more transactions, including negotiated
transactions. These sales will be made at a fixed public offering price or at
varying prices determined at the time of the sale. We may offer the debt
securities to the public through an underwriting syndicate or through a single
underwriter.
Each underwriter, dealer and agent participating in the distribution of any
debt securities that are issuable as Bearer Securities will agree that, in
connection with the original issuance of those Bearer Securities, it will not
offer, sell or deliver, directly or indirectly, Bearer Securities to a U.S.
person or to any person within the United States, except to the extent permitted
under U.S. Treasury regulations.
All offered securities, except for the common stock, will be new issues of
securities with no established trading market. Any underwriters to whom we sell
offered securities for public offering and sale may make a market in the
securities offered pursuant to this prospectus, but such underwriters will not
be obligated to do so and may discontinue any market making at any time without
notice. We can give no assurance concerning the liquidity of the trading market
for any of the securities offered pursuant to this prospectus.
VALIDITY OF SECURITIES
Ms. Jennie P. Carlson, Esq., Senior Vice President, General Counsel and
Secretary of Firstar, will pass upon the validity of the offered securities. As
of March 31, 1999, Ms. Carlson was the beneficial owner of 47,654 shares of
Common Stock and had options to acquire 45,000 additional shares.
EXPERTS
The consolidated financial statements of Firstar as of December 31, 1998
and 1997 and for each of the three years in the period ended December 31, 1998,
incorporated by reference in this prospectus, have been audited by
PricewaterhouseCoopers LLP, independent public accountants, as indicated in
their report with respect thereto, and are incorporated herein in reliance upon
the authority of said firm as experts in giving said report.
The consolidated financial statements of Mercantile Bancorporation Inc. at
December 31, 1998, 1997 and 1996 and for the three years ended December 31,
1998, are incorporated by reference in the Registration Statement to which this
prospectus pertains from Firstar's Current Report on Form 8-K filed on May 4,
1999 (as amended on May 19, 1999), have been audited by KPMG LLP, independent
auditors, as set forth in their report on those consolidated financial
statements incorporated herein in reliance upon such report given on the
authority of such firm as experts in accounting and auditing.
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FORWARD-LOOKING STATEMENTS
This prospectus and accompanying prospectus supplements contain or
incorporate statements that constitute "forward-looking statements" within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act. Those statements can be identified by the use of forward-looking language
such as "will likely result," "may," "are expected to," "is anticipated,"
"estimate," "projected," "intends to," or other similar words. Our actual
results, performance or achievements could differ materially from the results
expressed in, or implied by, those forward-looking statements. Those statements
are subject to certain risks and uncertainties, including but not limited to,
certain risks described in the applicable prospectus supplement. When
considering those forward-looking statements, you should keep in mind these
risks, uncertainties and other cautionary statements made in this prospectus and
the applicable prospectus supplement. You should not place undue reliance on any
forward-looking statement which speaks only as of the date made.
37
<PAGE> 71
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable in connection with the sale and
distribution of the securities being registered. All amounts except the
Commission registration fee are estimated.
<TABLE>
<CAPTION>
ITEM AMOUNT
- ---- --------
<S> <C>
Registration fee............................................ $278,000
Blue Sky fees and expenses.................................. 7,500
Printing and engraving expenses............................. 20,000
Legal fees and expenses..................................... 120,000
Accounting fees and expenses................................ 15,000
Transfer Agent and Registrar fees........................... 4,000
Trustee fees and expenses................................... 30,000
Miscellaneous............................................... 0
--------
Total.................................................. $474,500
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to the provisions of Sections 180.0850 through 180.0859,
inclusive, of the Wisconsin Business Corporation Law, directors and officers of
Firstar are entitled to mandatory indemnification from Firstar against certain
liabilities and expenses (a) to the extent such officers or directors are
successful in the defense of a proceeding, and (b) in proceedings in which the
director or officer is not successful in defense thereof, unless it is
determined that the director or officer breached or failed to perform his or her
duties to Firstar and such breach or failure constituted: (1) a willful failure
to deal fairly with Firstar or its shareholders in connection with a matter in
which the director or officer had a material conflict of interest; (2) a
violation of the criminal law unless the director or officer had reasonable
cause to believe his or her conduct was lawful or had no reasonable cause to
believe his or her conduct was unlawful; (3) a transaction from which the
director or officer derived an improper personal profit; or (4) willful
misconduct. Additionally, under Section 180.0828 of the Wisconsin Business
Corporation Law, directors of Firstar are not subject to personal liability to
Firstar, its shareholders or any person asserting rights on behalf thereof for
certain breaches or failures to perform any duty resulting solely from their
status as directors, except in circumstances paralleling those outlined above.
Firstar's By-Laws contain similar indemnification provisions as to
directors and officers of Firstar. Firstar has not entered into individual
indemnity agreements with its current directors.
Expenses for the defense of any action for which indemnification may be
available may be advanced by Firstar under certain circumstances.
Firstar maintains a liability insurance policy for officers and directors.
II-1
<PAGE> 72
ITEM 16. EXHIBITS AND FINANCIAL STATEMENTS AND SCHEDULES
(a) Exhibits
The following Exhibits are filed herewith or incorporated herein by
reference:
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
- ------- ----------------------
<S> <C>
1.1 Form of Underwriting Agreement for Debt Securities*
1.2 Form of Underwriting Agreement for Preferred Stock*
1.3 Form of Underwriting Agreement for Common Stock*
1.4 Form of Distribution Agreement***
3.1 Articles of Incorporation of Firstar Corporation
(incorporated by reference to Exhibit 3.1 of Registration
Statement No. 333-64099 of Firstar)
3.2 By-Laws of Firstar Corporation (incorporated by reference to
Exhibit 3.2 of Registration Statement No. 333-64099 of
Firstar)
4.1 Senior Indenture, dated as of June 22, 1999, by and between
Firstar and Citibank, N.A., as trustee
4.2 Form of Senior Registered Note**
4.3 Form of Senior Medium-Term Note (Fixed Rate)**
4.4 Form of Senior Medium-Term Note (Floating Rate)**
4.5 Form of Subordinated Indenture***
4.6 Form of Subordinated Registered Note**
4.7 Form of Subordinated Medium-Term Note (Fixed Rate)**
4.8 Form of Subordinated Medium-Term Note (Floating Rate)**
4.9 Form of Certificate of Designations for Preferred Stock**
4.10 Form of Certificate for Preferred Stock**
4.11 Form of Certificate for Convertible Preferred Stock**
4.12 Form of Certificate for Common Stock**
4.13 Form of Deposit Agreement**
4.14 Form of Depositary Receipt (included within Exhibit 4.13)**
4.15 Form of Warrant Agreement for Debt Securities**
4.16 Form of Warrant Agreement for Preferred Stock**
4.17 Form of Warrant Agreement for Common Stock**
5.1 Opinion of Jennie P. Carlson, Esq.***
8.1 Opinion of Wachtell, Lipton, Rosen & Katz regarding certain
federal income tax matters**
12.1 Statement Re Computation of Ratios***
23.1 Consent of PriceWaterhouseCoopers LLP
23.2 Consent of KPMG LLP***
23.3 Consent of Jennie P. Carlson, Esq. (included within Exhibit
5.1)
24.1 Powers of Attorney***
25.1 Statement of Eligibility under the Trust Indenture Act of
1939 of a corporation designated to act as Trustee
99.1 Report of PriceWaterhouseCoopers LLP
</TABLE>
- ---------------
* To be filed by amendment or by filing of a Form 8-K subsequently
incorporated by reference.
** To be filed by amendment.
*** Previously filed.
(b) Financial Statements and Schedules
Either not applicable or shown in the financial statements or notes
thereto.
II-2
<PAGE> 73
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(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 (notwithstanding the
foregoing, any increase or decrease in the 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 percent change in the
maximum total 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 the purpose of determining any liability under the Securities
Act, each such post-effective amendment will be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time will 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.
(4) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1)
or (4) or 497 (h) under the Securities Act shall be deemed to be part
of this Registration Statement as of the time it was declared
effective. For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus 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.
(5) For purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to Section 13(a)
or 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 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.
(6) To file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed
by the commission under Section 305(b)(2) of the Act.
II-3
<PAGE> 74
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing this Registration Statement on Form S-3 or amendment
thereto and has duly caused this Registration Statement or amendment thereto to
be signed on its behalf by the undersigned, thereunto duly authorized, in
Milwaukee, Wisconsin, on June 23, 1999.
FIRSTAR CORPORATION
(Registrant)
By: /s/ JERRY A. GRUNDHOFER
------------------------------------
Name: Jerry A. Grundhofer
Title: President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement or amendment thereto has been signed by the following persons in the
capacities indicated on June 23, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ JERRY A. GRUNDHOFER President, Chief Executive Officer and
- -------------------------------------------- Director
Jerry A. Grundhofer
/s/ ROGER L. FITZSIMONDS Chairman and Director
- --------------------------------------------
Roger L. Fitzsimonds
/s/ DAVID M. MOFFETT Vice Chairman and Chief Financial Officer
- --------------------------------------------
David M. Moffett
/s/ JAMES D. HOGAN Senior Vice President and Controller
- --------------------------------------------
James D. Hogan
* Director
- --------------------------------------------
Paul M. Baker
* Director
- --------------------------------------------
Michael E. Batten
* Director
- --------------------------------------------
James R. Bridgeland, Jr.
* Director
- --------------------------------------------
Laurance L. Browning, Jr.
* Director
- --------------------------------------------
Victoria B. Buyniski
</TABLE>
II-4
<PAGE> 75
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Director
- --------------------------------------------
Robert C. Buchanan
* Director
- --------------------------------------------
Samuel M. Cassidy
* Director
- --------------------------------------------
George M. Chester, Jr.
* Director
- --------------------------------------------
V. Anderson Coombe
* Director
- --------------------------------------------
John C. Dannemiller
* Director
- --------------------------------------------
James L. Forbes
* Director
- --------------------------------------------
David B. Garvin
* Director
- --------------------------------------------
J. P. Hayden, Jr.
* Director
- --------------------------------------------
Joe F. Hladky
* Director
- --------------------------------------------
Roger L. Howe
* Director
- --------------------------------------------
Thomas J. Klinedinst, Jr.
* Director
- --------------------------------------------
William H. Lacy
* Director
- --------------------------------------------
Sheldon B. Lubar
* Director
- --------------------------------------------
Kenneth P. Manning
* Director
- --------------------------------------------
Daniel F. McKeithan, Jr.
* Director
- --------------------------------------------
Charles S. Mechem, Jr.
</TABLE>
II-5
<PAGE> 76
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Director
- --------------------------------------------
Daniel J. Meyer
* Director
- --------------------------------------------
David B. O'Maley
* Director
- --------------------------------------------
Robert J. O'Toole
* Director
- --------------------------------------------
O'Dell M. Owens, M.D., M.P.H
* Director
- --------------------------------------------
Thomas E. Petry
* Director
- --------------------------------------------
Judith D. Pyle
* Director
- --------------------------------------------
John J. Stollenwerk
* Director
- --------------------------------------------
Oliver W. Waddell
* Director
- --------------------------------------------
William W. Wirtz
* By: /s/ JERRY A. GRUNDHOFER Attorney-in-fact for the persons indicated
- -------------------------------------------- above with a *
Jerry A. Grundhofer
Attorney-in-fact
</TABLE>
II-6
<PAGE> 77
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------- -------
<C> <S>
1.1 Form of Underwriting Agreement for Debt Securities*
1.2 Form of Underwriting Agreement for Preferred Stock*
1.3 Form of Underwriting Agreement for Common Stock*
1.4 Form of Distribution Agreement***
3.1 Articles of Incorporation of Firstar Corporation
(incorporated by reference to Exhibit 3.1 of Registration
Statement No. 333-64099 of Firstar)
3.2 By-Laws of Firstar Corporation (incorporated by reference to
Exhibit 3.2 of Registration Statement No. 333-64099 of
Firstar)
4.1 Senior Indenture, dated as of June 22, 1999, by and between
Firstar and Citibank, N.A., as trustee
4.2 Form of Senior Registered Note**
4.3 Form of Senior Medium-Term Note (Fixed Rate)**
4.4 Form of Senior Medium-Term Note (Floating Rate)**
4.5 Form of Subordinated Indenture***
4.6 Form of Subordinated Registered Note**
4.7 Form of Subordinated Medium-Term Note (Fixed Rate)**
4.8 Form of Subordinated Medium-Term Note (Floating Rate)**
4.9 Form of Certificate of Designations for Preferred Stock**
4.10 Form of Certificate for Preferred Stock**
4.11 Form of Certificate for Convertible Preferred Stock**
4.12 Form of Certificate for Common Stock**
4.13 Form of Deposit Agreement**
4.14 Form of Depositary Receipt (included within Exhibit 4.13)**
4.15 Form of Warrant Agreement for Debt Securities**
4.16 Form of Warrant Agreement for Preferred Stock**
4.17 Form of Warrant Agreement for Common Stock**
5.1 Opinion of Jennie P. Carlson***
8.1 Opinion of Wachtell, Lipton, Rosen & Katz regarding certain
federal income tax matters**
12.1 Statement Re Computation of Ratios***
23.1 Consent of PriceWaterhouseCoopers LLP
23.2 Consent of KPMG LLP***
23.3 Consent of Jennie P. Carlson, Esq. (included within Exhibit
5.1)
24.1 Powers of Attorney***
25.1 Statement of Eligibility under the Trust Indenture Act of
1939 of a corporation designated to act as Trustee
99.1 Report of PriceWaterhouseCoopers LLP
</TABLE>
- ---------------
* To be filed by amendment or by filing of a Form 8-K subsequently
incorporated by reference.
** To be filed by amendment.
*** Previously filed.
<PAGE> 1
EXHIBIT 4.1
FIRSTAR CORPORATION
TO
CITIBANK, N.A.
TRUSTEE
---------------
INDENTURE
DATED AS OF JUNE 22, 1999
---------------
SENIOR DEBT SECURITIES
<PAGE> 2
FIRSTAR CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF JUNE 22, 1999
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
<S> <C>
Section 310 (a) (1)...................... 6.9
(a) (2)...................... 6.9
(a) (3)...................... Not Applicable
(a) (4)...................... Not Applicable
(a) (5)...................... 6.9
(b).......................... 6.8, 6.10
(c).......................... Not Applicable
Section 311 (a).......................... 6.13
(b).......................... 6.13
Section 312 (a).......................... 7.1, 7.2 (a)
(b).......................... 7.2 (b)
(c).......................... 7.2 (c)
Section 313 (a).......................... 7.3 (a)
(b).......................... 7.3 (a)
(c).......................... 7.3 (a)
(d).......................... 7.3 (b)
Section 314 (a).......................... 7.4, 10.7
(b).......................... Not Applicable
(c) (1)...................... 1.2
(c) (2)...................... 1.2
(c) (3)...................... Not Applicable
(d).......................... Not Applicable
(e).......................... 1.2
Section 315 (a).......................... 6.1
(b).......................... 6.2
(c).......................... 6.1
(d).......................... 6.1
(e).......................... 5.14
Section 316 (a).......................... 1.1
(a) (1) (A).................. 1.4 (h), 5.2
............................. 5.12
(a) (1) (B).................. 1.4 (h), 5.13
(A) (2)...................... Not Applicable
(b).......................... 5.8
(c).......................... 1.4 (h)
Section 317 (a) (1)...................... 5.3
(a) (2)...................... 5.4
(b).......................... 10.3
Section 318 (a).......................... 1.7
(c).......................... 1.7
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1. Definitions......................................................................... 1
Act................................................................................. 2
Affiliate........................................................................... 2
Authorized Newspaper................................................................ 2
Bearer Security..................................................................... 2
Board of Directors.................................................................. 2
Board Resolution.................................................................... 2
Business Day........................................................................ 2
Capital Stock....................................................................... 3
CEDEL or CEDEL S.A.................................................................. 3
Commission.......................................................................... 3
Company............................................................................. 3
Company Request and Company Order................................................... 3
Corporate Trust Office.............................................................. 3
corporation......................................................................... 3
coupon.............................................................................. 3
Debt Securities..................................................................... 3
Default............................................................................. 3
Defaulted Interest.................................................................. 3
Depositary.......................................................................... 4
Designated Currency................................................................. 4
Dollar or $......................................................................... 4
Eligible Instruments................................................................ 4
Euroclear........................................................................... 4
Euro................................................................................ 4
Event of Default.................................................................... 4
Exchange Rate....................................................................... 4
Exchange Rate Agent................................................................. 4
Exchange Rate Officer's Certificate................................................. 4
Foreign Currency.................................................................... 4
Global Exchange Agent............................................................... 4
Global Exchange Date................................................................ 4
Global Security..................................................................... 5
Holder.............................................................................. 5
Indenture........................................................................... 5
</TABLE>
-i-
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
interest............................................................................ 5
Interest Payment Date............................................................... 5
Maturity............................................................................ 5
Officers' Certificate............................................................... 5
Opinion of Counsel.................................................................. 5
Original Issue Discount Security.................................................... 5
Outstanding......................................................................... 5
Paying Agent........................................................................ 6
Person.............................................................................. 6
Place of Payment.................................................................... 6
Predecessor Security................................................................ 7
Principal Subsidiary Bank........................................................... 7
Redemption Date..................................................................... 7
Redemption Price.................................................................... 7
Registered Security................................................................. 7
Regular Record Date................................................................. 7
Remarketing Entity.................................................................. 7
Repayment Date...................................................................... 7
Repayment Price..................................................................... 7
Responsible Officer................................................................. 7
Security Register and Security Registrar............................................ 8
Special Record Date................................................................. 8
Stated Maturity..................................................................... 8
Subsidiary.......................................................................... 8
Subsidiary Bank..................................................................... 8
Trust Indenture Act................................................................. 8
Trustee............................................................................. 8
United States....................................................................... 8
United States Alien................................................................. 8
U.S. Government Obligations......................................................... 8
Voting Stock........................................................................ 9
Section 1.2. Compliance Certificates and Opinions................................................ 9
Section 1.3. Form of Documents Delivered to Trustee.............................................. 9
Section 1.4. Acts of Holders..................................................................... 10
Section 1.5. Notices, etc., to Trustee and Company............................................... 12
Section 1.6. Notice to Holders; Waiver........................................................... 12
Section 1.7. Conflict with Trust Indenture Act................................................... 13
Section 1.8. Effect of Headings and Table of Contents............................................ 13
Section 1.9. Successors and Assigns.............................................................. 13
Section 1.10. Separability Clause................................................................. 13
Section 1.11. Benefits of Indenture............................................................... 13
Section 1.12. Governing Law....................................................................... 14
Section 1.13. Legal Holidays...................................................................... 14
Section 1.14. Counterparts........................................................................ 14
</TABLE>
-ii-
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE TWO
DEBT SECURITY FORMS
Section 2.1. Forms Generally..................................................................... 14
Section 2.2. Form of Trustee's Certificate of Authentication..................................... 15
Section 2.3. Debt Securities in Global Form...................................................... 15
ARTICLE THREE
THE DEBT SECURITIES
Section 3.1. Amount Unlimited; Issuance in Series................................................ 16
Section 3.2. Denominations....................................................................... 19
Section 3.3. Execution, Authentication, Delivery and Dating...................................... 19
Section 3.4. Temporary Debt Securities........................................................... 22
Section 3.5. Registration; Registration of Transfer and Exchange................................. 25
Section 3.6. Mutilated, Destroyed, Lost and Stolen Debt Securities............................... 28
Section 3.7. Payment of Interest; Interest Rights Preserved...................................... 29
Section 3.8. Persons Deemed Owners............................................................... 31
Section 3.9. Cancellation........................................................................ 32
Section 3.10. Computation of Interest............................................................. 32
Section 3.11. Certification by a Person Entitled to Delivery of a Bearer Security................. 32
Section 3.12. Judgments........................................................................... 32
Section 3.13. CUSIP Numbers....................................................................... 33
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.1. Satisfaction and Discharge of Indenture............................................. 33
Section 4.2. Application of Trust Money and Eligible Instruments................................. 35
Section 4.3. Satisfaction, Discharge and Defeasance of Debt Securities of any Series............. 35
ARTICLE FIVE
REMEDIES
Section 5.1. Events of Default................................................................... 37
Section 5.2. Acceleration of Maturity; Rescission and Annulment.................................. 39
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee..................... 40
Section 5.4. Trustee May File Proofs of Claim.................................................... 40
Section 5.5. Trustee May Enforce Claims without Possession of Debt Securities or Coupons......... 41
Section 5.6. Application of Money Collected...................................................... 42
</TABLE>
-iii-
<PAGE> 6
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Section 5.7. Limitation on Suits................................................................. 42
Section 5.8. Unconditional Right of Holders to Receive Principal, Premium and Interest........... 43
Section 5.9. Restoration of Rights and Remedies.................................................. 43
Section 5.10. Rights and Remedies Cumulative...................................................... 43
Section 5.11. Delay or Omission Not Waiver........................................................ 43
Section 5.12. Control by Holders of Debt Securities............................................... 44
Section 5.13. Waiver of Past Defaults............................................................. 44
Section 5.14. Undertaking for Costs............................................................... 44
Section 5.15. Waiver of Stay or Extension Laws.................................................... 45
ARTICLE SIX
THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities................................................. 45
Section 6.2. Notice of Default................................................................... 45
Section 6.3. Certain Rights of Trustee........................................................... 46
Section 6.4. Not Responsible for Recitals or Issuance of Debt Securities......................... 47
Section 6.5. May Hold Debt Securities or Coupons................................................. 47
Section 6.6. Money Held in Trust................................................................. 47
Section 6.7. Compensation and Reimbursement...................................................... 48
Section 6.8. Disqualification; Conflicting Interests............................................. 48
Section 6.9. Corporate Trustee Required; Eligibility............................................. 49
Section 6.10. Resignation and Removal; Appointment of Successor................................... 49
Section 6.11. Acceptance of Appointment by Successor.............................................. 51
Section 6.12. Merger, Conversion, Consolidation or Succession to Business......................... 52
Section 6.13. Preferential Collection of Claims Against Company................................... 52
Section 6.14. Authenticating Agent................................................................ 52
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders........................... 54
Section 7.2. Preservation of Information; Communications to Holders.............................. 54
Section 7.3. Reports by Trustee.................................................................. 54
Section 7.4. Reports by Company.................................................................. 55
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1. Company May Consolidate, etc. Only on Certain Terms................................. 55
Section 8.2. Successor Corporation Substituted................................................... 56
</TABLE>
-iv-
<PAGE> 7
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures without Consent of Holders.................................. 56
Section 9.2. Supplemental Indentures with Consent of Holders..................................... 57
Section 9.3. Execution of Supplemental Indentures................................................ 59
Section 9.4. Effect of Supplemental Indentures................................................... 59
Section 9.5. Conformity with Trust Indenture Act................................................. 59
Section 9.6. Reference in Debt Securities to Supplemental Indentures............................. 59
ARTICLE TEN
COVENANTS
Section 10.1. Payment of Principal, Premium and Interest.......................................... 59
Section 10.2. Maintenance of Office or Agency..................................................... 60
Section 10.3. Money for Debt Securities Payments to Be Held in Trust.............................. 61
Section 10.4. Purchase of Debt Securities by Company or Subsidiary................................ 62
Section 10.5. Existence........................................................................... 63
Section 10.6. Restrictions Upon Sale or Issuance of Capital Stock of Certain Subsidiary Banks..... 63
Section 10.7. Payment of Additional Amounts....................................................... 64
Section 10.8. Officers' Certificate as to Default................................................. 64
Section 10.9. Waiver of Certain Covenants......................................................... 65
Section 10.10. Calculation of Original Issue Discount.............................................. 65
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
Section 11.1. Applicability of Article............................................................ 65
Section 11.2. Election to Redeem; Notice to Trustee............................................... 65
Section 11.3. Selection by Trustee of Debt Securities to be Redeemed.............................. 66
Section 11.4. Notice of Redemption................................................................ 66
Section 11.5. Deposit of Redemption Price......................................................... 67
Section 11.6. Debt Securities Payable on Redemption Date.......................................... 67
Section 11.7. Debt Securities Redeemed in Part.................................................... 68
ARTICLE TWELVE
SINKING FUNDS
Section 12.1. Applicability of Article............................................................ 68
Section 12.2. Satisfaction of Sinking Fund Payments with Debt Securities.......................... 69
Section 12.3. Redemption of Debt Securities for Sinking Fund...................................... 69
</TABLE>
-v-
<PAGE> 8
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1. Applicability of Article............................................................ 70
Section 13.2. Repayment of Debt Securities........................................................ 70
Section 13.3. Exercise of Option; Notice.......................................................... 70
Section 13.4. Election of Repayment by Remarketing Entities....................................... 71
Section 13.5. Securities Payable on the Repayment Date............................................ 71
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
Section 14.1. Purposes for Which Meetings May Be Called........................................... 72
Section 14.2. Call, Notice and Place of Meetings.................................................. 72
Section 14.3. Persons Entitled to Vote at Meetings................................................ 72
Section 14.4. Quorum; Action...................................................................... 73
Section 14.5. Determination of Voting Rights; Conduct and Adjournment of Meetings................. 74
Section 14.6. Counting Votes and Recording Action of Meetings..................................... 74
ARTICLE FIFTEEN
DEFEASANCE
Section 15.1. Termination of Company's Obligations................................................ 75
Section 15.2. Repayment to Company................................................................ 76
Section 15.3. Indemnity for Eligible Instruments.................................................. 77
Testimonium........................................................................................... 77
Signatures and Seals.................................................................................. 77
Acknowledgments....................................................................................... 78
Exhibit A-1........................................................................................... 80
Exhibit A-2........................................................................................... 82
Exhibit B............................................................................................. 83
</TABLE>
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<PAGE> 9
INDENTURE (the "Indenture") dated as of June 22, 1999, between
FIRSTAR CORPORATION, a Wisconsin corporation (hereinafter called the "Company"),
having its principal place of business at 777 East Wisconsin Avenue, Milwaukee,
Wisconsin 53202 and CITIBANK, N.A., a national banking association (hereinafter
called the "Trustee"), having its Corporate Trust Office at 111 Wall Street, New
York, N.Y. 10005.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its debentures,
notes, bonds and other evidences of indebtedness (herein called the "Debt
Securities").
All things necessary have been done to make this Indenture a
valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Debt Securities of any series created and issued on or after the date hereof
by the Holders thereof, it is mutually covenanted and agreed for the equal and
proportionate benefit of all Holders of such Debt Securities or of any such
series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule or regulation under the Trust
Indenture Act, either directly or by reference therein, as in force at
the date as of which this instrument was exercised, except as provided
in Section 9.5, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted in the United
States at the date of such computation; and
<PAGE> 10
(4) the words "herein", "hereof" and "hereunder" and other
words of similar impact refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in
that Article.
"Act" when used with respect to any Holder has the meaning
specified in Section 1.4.
"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.
"Authorized Newspaper" means a newspaper in an official
language of the country of publication or in the English language customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in the place in connection with which
the term is used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Debt Security established pursuant
to Section 2.1 which is payable to bearer including, without limitation, unless
the context otherwise indicates, a Debt Security in global bearer form.
"Board of Directors" means either the board of directors of
the Company, or the executive or any other committee of that board duly
authorized to act in respect hereof.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Debt Securities and the forms and terms
thereof), such action may be taken by any committee of the Board or the Company
or any officer or employee of the Company authorized to take such action by a
Board Resolution.
"Business Day" with respect to any Debt Security means any
day, other than a Saturday or Sunday, that is not a legal holiday or a day on
which banking institutions are authorized or obligated by law or executive order
to be closed in (a) the City of New York or (b) if the Designated Currency for a
Debt Security is a Foreign Currency, the financial center of the country issuing
such Designated Currency (which, in the case of Euros, shall be Brussels,
Belgium). If the interest rate of the Debt Security is based on LIBOR, "Business
Day" means any day on
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<PAGE> 11
which dealings in deposits in the Designated Currency of such Debt Security are
transacted in the London interbank market.
"Capital Stock" means, as to shares of a corporation,
outstanding shares of stock of any class, whether now or hereafter authorized,
irrespective of whether such class shall be limited to a fixed sum or percentage
in respect of the rights of the holders thereof to participate in dividends and
in the distribution of assets upon the voluntary liquidation, dissolution or
winding up of such corporation.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs
Mobilieres S.A.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively,
except as otherwise provided in this Indenture, a written request or order
signed in the name of the Company by the Chairman of the Board, a Vice Chairman
of the Board, the President or a Vice President (any references to a Vice
President of the Company herein shall be deemed to include any Vice President of
the Company whether or not designated by a number or word or words added before
or after the title "Vice President"), the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, Secretary or an Assistant Secretary of the
Company or by another officer of the Company duly authorized to sign by a Board
Resolution, 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 at the date hereof is 111 Wall Street, 5th
Floor, New York, NY 10005.
The term "corporation" includes corporations, associations,
companies and business trusts.
The term "coupon" means any interest coupon appertaining to a
Bearer Security.
"Debt Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any Debt Securities authenticated
and delivered under this Indenture.
"Default" means any Event of Default and any default of the
type set forth in clauses (1) through (5) of Section 5.3.
"Defaulted Interest" has the meaning specified in Section 3.7.
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<PAGE> 12
"Depositary" means, with respect to the Debt Securities of any
series issuable or issued in the form of a Global Security, the Person (which
person shall be a clearing agency registered under the Securities Exchange Act
of 1934, as amended) designated as Depositary by the Company pursuant to Section
3.1 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall mean
or include each person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Debt Securities of any such series shall mean the Depositary with respect to the
Debt Securities of that series.
"Designated Currency" has the meaning specified in Section
3.12.
"Dollar" or "$" means the coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts.
"Eligible Instruments" means U.S. Government Obligations.
"Euroclear" means Morgan Guarantee Trust Company of New York,
Brussels Office, as operator of the Euroclear System.
"Euro" means the European currency in use by those European
Union countries participating in the system of economic and monetary union
established by the Manstricht Treaty of 1992.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Rate" shall have the meaning specified as
contemplated in Section 3.1.
"Exchange Rate Agent" shall have the meaning specified as
contemplated in Section 3.1.
"Exchange Rate Officer's Certificate", with respect to any
date for the payment of principal of (and premium, if any) and interest on any
series of Debt Securities, means a certificate setting forth the applicable
Exchange Rate and the amounts payable in Dollars and Foreign Currencies in
respect of the principal of (and premium, if any) and interest on Debt
Securities denominated in Euros, and other composite currency or Foreign
Currency, and signed by the Chairman of the Board, a Vice Chairman of the Board,
the President, the Treasurer or any Assistant Treasurer of the Company or the
Exchange Rate Agent appointed pursuant to Section 3.1, and delivered to the
Trustee.
"Foreign Currency" means a currency issued by the government
of any country other than the United States of America.
"Global Exchange Agent" has the meaning specified in Section
3.4.
"Global Exchange Date" has the meaning specified in Section
3.4.
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<PAGE> 13
"Global Security" means a Debt Security issued to evidence all
or part of a series of Debt Securities in accordance with Section 3.3(c).
"Holder", with respect to a Registered Security, means a
Person in whose name such Registered Security is registered in the Security
Register and, with respect to a Bearer Security or a coupon, means the bearer
thereof.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented, amended or restated by or pursuant to
one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and, unless the context otherwise requires, shall
include the terms of a particular series of Debt Securities established as
contemplated by Section 3.1.
The term "interest", when used with respect to an Original
Issue Discount Security which by its terms bears interest only after Maturity,
means interest payable after Maturity.
"Interest Payment Date", with respect to any Debt Security,
means the Stated Maturity of an installment of interest on such Debt Security.
"Maturity", when used with respect to any Debt Security, means
the date on which the principal of such Debt Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment at the option of the Holder or
otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may (except as otherwise expressly provided in this Indenture) be counsel for
the Company, or who may be other counsel acceptable to the Trustee, which is
delivered to the Trustee.
"Original Issue Discount Security" means any Debt Security
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 5.2.
"Outstanding", when used with respect to Debt Securities
means, as of the date of determination, all Debt Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debt Securities or portions thereof for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying
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<PAGE> 14
Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Debt Securities and any coupons appertaining
thereto; provided, however, that if such Debt Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Debt Securities paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Debt Securities have been
authenticated and other than any such securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it
that such securities are held by a bona fide purchaser in whose hands
such securities are valid obligations of the Company delivered, or
which have been paid, pursuant to this Indenture; and
(iv) Securities which have been defeased pursuant to Section
15.1;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debt Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the principal
amount of an Original Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable as of
the date of such determination upon acceleration of the Maturity thereof
pursuant to Section 5.2, (ii) the principal amount of a Debt Security
denominated on one or more Foreign Currencies or currency units shall be the
Dollar equivalent, determined in the manner provided as contemplated by Section
3.1 on the date of original issuance of such Debt Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar
equivalent on the date of original issuance of such Debt Security of the amount
determined as provided in clause (i) above) of such Debt Security, and (iii)
Debt Securities owned by the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon such request, demand,
authorization, direction, notice, consent or waiver, only Debt Securities which
the Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Debt Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Debt Securities and
that the pledgee is not the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Debt Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Debt
Securities of any series means any place where the principal of (and premium, if
any) and interest on the Debt Securities of that series are payable as specified
as contemplated by Section 3.1.
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<PAGE> 15
"Predecessor Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the same debt as
that evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 3.6 in
lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debt Security.
"Principal Subsidiary Bank" means any Subsidiary Bank at the
time having total assets as set forth in its most recent statement of condition
equal to more than 10% of the total consolidated assets of the Company and its
Subsidiaries determined on a consolidated basis from the Company's most recent
financial statements filed with the Commission pursuant to the Securities
Exchange Act of 1934.
"Redemption Date", when used with respect to any Debt Security
to be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Debt
Security to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Registered Security" means any Debt Security in the form of
Registered Securities established pursuant to Section 2.1 which is registered in
the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of any series means the date specified
for that purpose as contemplated by Section 3.1.
"Remarketing Entity", when used with respect to Debt
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity, means any person designated by the Company
to purchase any such Debt Securities.
"Repayment Date", when used with respect to any Debt Security
to be repaid upon exercise of option for repayment by the Holder, means the date
fixed for such repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Debt Security
to be repaid upon exercise of option for repayment by the Holder, means the
price at which it is to be repaid pursuant to this Indenture.
"Responsible Officer" shall mean, when used with respect to
the Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
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<PAGE> 16
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Debt Security
or any installment of interest thereon, means the date specified in such Debt
Security or a coupon representing such installment of interest as the fixed date
on which the principal of such Debt Security or such installment is due and
payable.
"Subsidiary" means any corporation more than 50% of the
outstanding shares of Voting Stock, except for directors' qualifying shares, of
which shall at the time be owned, directly or indirectly, by the Company or by
one or more of the Subsidiaries, or by the Company and one or more other
Subsidiaries.
"Subsidiary Bank" means any commercial bank or trust company
organized in the United States under Federal or state law, at least a majority
of the shares of the Voting Stock of which shall at the time be owned, directly
or indirectly, by the Company or by one or more Subsidiaries or by the Company
and one or more Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed, except as
provided in Section 9.5.
"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 pro visions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Debt Securities of any series shall mean the Trustee with respect
to Debt Securities of that series.
"United States" means the United States of America (including
the District of Columbia) and its possessions which include Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island, and the Northern Mariana
Islands.
"United States Alien" means any Person who, for United States
Federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien fiduciary of a foreign estate or trust, or a
foreign partnership one or more of the members of which is, for United States
Federal income tax purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means direct obligations of the
United States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which in either case are not callable or redeemable at the
option of the issuer thereof.
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<PAGE> 17
"Voting Stock", as applied to the stock (or the equivalent
thereof) of any corporation, means stock (or the equivalent thereof) of any
class or classes, however designated, having ordinary voting power for the
election of a majority of the directors of such corporation, other than stock
(or such equivalent) having such power only by reason of the happening of a
contingency.
SECTION 1.2. 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 (other than the
delivery of any Debt Security to the Trustee for authentication pursuant to
Section 3.3), the Company shall furnish to the Trustee, if so requested by the
Trustee, an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definition
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
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<PAGE> 18
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 or her certificate or opinion is
based is 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 opinions or representations with respect to such
matters is 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 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If Debt Securities of a series are issuable in whole or in
part as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may, alternatively, be embodied in and evidenced by the
record of Holders of Debt Securities voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of Holders of Debt
Securities duly called and held in accordance with the provisions of Article
Fourteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee,
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
the holding by any Person of a Debt Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 6.1) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Debt Securities shall be proved in the
manner provided in Section 14.6.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The ownership of Registered Securities shall be proved by
the Security Register.
(d) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be proved
by the production of such Bearer Secu-
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<PAGE> 19
rities or by a certificate executed, as depositary, by any trust company, bank,
banker or other depositary, wherever situated, if such certificate shall be
deemed by the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depositary, or exhibited to it,
the Bearer Securities in the amount and with the serial numbers therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if such certificate or affidavit is
deemed by the Trustee to be satisfactory. The Trustee and the Company may assume
that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding.
(e) The fact and date of execution of any such instrument or
writing, the authority of the Person executing the same and the principal amount
and serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Debt Security shall bind every
future holder of the same Debt Security and the Holder of every Debt Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, suffered or omitted by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Debt Security.
(g) For purposes of determining the principal amount of
Outstanding Debt Securities of any series of Holders of which are required,
requested or permitted to give any request, demand, authorization, direction,
notice, consent, waiver or take any other Act under this Indenture, (i) each
Original Issue Discount Security shall be deemed to have the principal amount
determined by the Trustee that could be declared to be due and payable pursuant
to the terms of such Original Issue Discount Security as of the date there is
delivered to the Trustee and, where it is hereby expressly required, to the
Company, such Act by Holders of the required aggregate principal amount of the
Outstanding Debt Securities of such series and (ii) each Debt Security
denominated in a Foreign Currency or composite currency shall be deemed to have
the principal amount determined by the Exchange Rate Agent by converting the
principal amount of such Debt Security in the currency in which such Debt
Security is denominated into Dollars at the Exchange Rate as of the date such
Act is delivered to the Trustee and, where it is hereby expressly required, to
the Company, by Holders of the required aggregate principal amount of the
Outstanding Debt Securities of such series (or, if there is no such rate on such
date, such rate on the date determined as specified as contemplated in Section
3.1).
(h) The Company may set a record date for purposes of
determining the identity of Holders of Debt Securities of any series entitled to
vote or consent to any action by vote or consent authorized or permitted by
Section 5.12 or Section 5.13. Such record date shall be the
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<PAGE> 20
later of 30 days prior to the first solicitation of such consent or the date of
the most recent list of Holders of such Debt Securities furnished to the Trustee
pursuant to Section 7.1 prior to such solicitation.
SECTION 1.5. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided), if made, given, furnished or filed in writing to
or with the Trustee at its Corporate Trust Office, Attention: Global
Agency & Trust Services 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 the attention of its Secretary at
the address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing
to the Trustee by the Company.
SECTION 1.6. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to Holders of any event, (1) such notice shall be
sufficiently given to Holders of Registered Securities if in writing and
mailed, first-class postage prepaid, to each Holder of a Registered Security
affected by such event, at such Holder's address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice; and (2) such notice shall be
sufficiently given to Holders of Bearer Securities by publication thereof in an
Authorized Newspaper in The City of New York and, if the Debt Securities of such
series are then listed on The International Stock Exchange of the United Kingdom
and the Republic of Ireland and such stock exchange shall so require, in London,
and, if the Debt Securities of such series are then listed on the Luxembourg
Stock Exchange and such stock exchange shall so require, in Luxembourg and, if
the Debt Securities of such series are then listed on any other stock exchange
outside the United States and such stock exchange shall so require, in any other
required city outside the United States or, if not practicable, in Europe on a
Business Day at least twice, the first such publication to be not later than the
latest date and not earlier than the earliest date prescribed for the giving of
such notice.
In case, by reason of the suspension of or irregularities in
regular mail service or for any other reason, it shall be impossible or
impracticable to mail notice of any event to Holders when said notice is
required to be given pursuant to any provision of this Indenture or of the Debt
Securities, then any manner of giving such notice as shall be satisfactory to
the Trustee shall be deemed to be a sufficient giving of such notice. In any
case where notice to Holders of Registered Securities is to be given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder of a Registered Security shall affect the suffi-
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ciency of such notice with respect to other Holders of Registered Securities or
the sufficiency of any notice by publication to Holders of Bearer Securities
given as provided above.
In case, by reason of the suspension of publication of any
Authorized Newspaper, or by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Bearer Securities
as provided above, then such method of publication or notification as shall be
made with the approval of the Trustee shall constitute a sufficient publication
of such notice. Neither failure to give notice by publication to Holders of
Bearer Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice mailed to Holders of Registered
Securities as provided above.
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.
Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act required or permitted under this
Indenture shall be in the English language, except that any published notice may
be in an official language of the country of publication.
SECTION 1.7. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by
any of the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether expressed or not.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Debt
Securities or coupons 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 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities or
coupons, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, any Paying
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Agent and the Holders any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 1.12. Governing Law.
This Indenture and the Debt Securities and coupons shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to conflicts of laws principles thereof.
SECTION 1.13. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Repayment Date or Stated Maturity of any Debt Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Debt Securities or coupons) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date,
Redemption Date, Repayment Date or Stated Maturity, and no interest shall accrue
for the period from and after such Interest Payment Date, Redemption Date,
Repayment Date or Stated Maturity, as the case may be.
SECTION 1.14. Counterparts.
This Indenture 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 Indenture.
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 2.1. Forms Generally.
The Registered Securities, if any, and the Bearer Securities
and related coupons, if any, of each series shall be in substantially the form
(including temporary or permanent global form) as shall be established in or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon, as may be required to comply with the rules of any
securities exchange, or as may, consistently herewith, be determined by the
officers executing such Debt Securities or coupons, as evidenced by their
signatures on the Debt Securities or coupons. If the form of Debt Securities of
any series or coupons (including any such Global Security) is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of
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the Company Order contemplated by Section 3.3 or the authentication and delivery
of such Debt Securities or coupons.
Unless otherwise specified as contemplated by Section 3.1,
Debt Securities in bearer form other than Debt Securities in temporary or
permanent global form shall have coupons attached.
The definitive Debt Securities and coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such Debt
Securities, as evidenced by the execution of such Debt Securities and coupons.
SECTION 2.2. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Debt Securities, of the series designated
herein, described in the within-mentioned Indenture.
CITIBANK, N.A.
as Trustee
By _____________________________
Authorized Signatory
SECTION 2.3. Debt Securities in Global Form.
If Debt Securities of a series are issuable in whole or in
part in global form, as specified as contemplated by Section 3.1, then,
notwithstanding clause (10) of Section 3.1 and the provisions of Section 3.2,
such Global Security shall represent such of the Outstanding Debt Securities of
such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Debt Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Debt Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Global Security to reflect the amount, or any increase or
decrease in the amounts of Outstanding Debt Securities represented thereby shall
be made in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 3.3 or Section 3.4.
The provisions of the last sentence of Section 3.3(g) shall
apply to any Debt Securities represented by a Debt Security in global form if
such Debt Security was never issued and sold by the Company and the Company
delivers to the Trustee the Debt Security in global form together with written
instructions (which need not comply with Section 1.2 and need not be accompanied
by an Opinion of Counsel) with respect to the reduction in the principal amount
of
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<PAGE> 24
Debt Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 3.3(g).
Global Securities may be issued in either registered or bearer
form and in either temporary or permanent global form.
ARTICLE THREE
THE DEBT SECURITIES
SECTION 3.1. Amount Unlimited; Issuance in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which
shall distinguish the Debt Securities of the series from all other Debt
Securities);
(2) the limit, if any, upon the aggregate principal amount of
the Debt Securities of the series which may be authenticated and
delivered under this Indenture (except for Debt Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Debt Securities of the series
pursuant to Section 3.4, 3.5, 3.6, 9.6, 11.7 or 13.3 and except for any
Debt Securities which, pursuant to Section 3.3, are deemed never to
have been authenticated and delivered hereunder);
(3) the date or dates on which the principal and premium, if
any, of the Debt Securities of the series are payable;
(4) the rate or rates, if any, at which the Debt Securities of
the series shall bear interest, or the method or methods by which such
rate or rates may be determined, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such
interest shall be payable, the Regular Record Date for the interest
payable on any Registered Security on any Interest Payment Date and the
circumstances, if any, in which the Company may defer interest
payments;
(5) the place or places where, subject to the provisions of
Section 10.2, the principal of (and premium, if any) and interest on
Debt Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration of
transfer, Debt Securities of the series may be surrendered for exchange
and notices and demands to or upon the Company in respect of the Debt
Securities of the series and this
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<PAGE> 25
Indenture may be served and where notices to Holders pursuant to
Section 1.6 will be published;
(6) if applicable, the period or periods within which or the
date or dates on which, the price or prices at which and the terms and
conditions upon which Debt Securities of the series may be redeemed,
in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Debt Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(8) whether Debt Securities of the series are to be issuable
as Registered Securities, Bearer Securities or both, whether Debt
Securities of the series are to be issuable with or without coupons or
both and, in the case of Bearer Securities, the date as of which such
Bearer Securities shall be dated if other than the date of original
issuance of the first Debt Security of such series of like tenor and
term to be issued;
(9) whether the Debt Securities of the series shall be issued
in whole or in part in the form of a Global Security or Securities and,
in such case, the Depositary and Global Exchange Agent for such Global
Security or Securities, whether such global form shall be permanent or
temporary and, if applicable, the Global Exchange Date;
(10) if Debt Securities of the series are to be issuable
initially in the form of a temporary Global Security, the circumstances
under which the temporary Global Security can be exchanged for
definitive Debt Securities and whether the definitive Debt Securities
will be Registered and/or Bearer Securities and will be in global form
and whether interest in respect of any portion of such Global Security
payable in respect of an Interest Payment Date prior to the Global
Exchange Date shall be paid to any clearing organization with respect
to a portion of such Global Security held for its account and, in such
event, the terms and conditions (including any certification
requirements) upon which any such interest payment received by a
clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date if other than as
provided in this Article Three;
(11) whether, and under what conditions, additional amounts
will be payable to Holders of Debt Securities of the series pursuant to
Section 10.6;
(12) the denominations in which any Registered Securities of
the series shall be issuable, if other than denominations of $1,000 and
any integral multiple thereof, and the denominations in which any
Bearer Securities of such series shall be issuable, if other than the
denomination of $5,000;
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<PAGE> 26
(13) if other than the principal amount thereof, the portion
of the principal amount of Debt Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.2;
(14) the currency or currencies of denomination of the Debt
Securities of any series, which may be in Dollars, any Foreign Currency
or any composite currency, including but not limited to the Euro, and,
if any such currency of denomination is a composite currency other than
the Euro, the agency or organization, if any, responsible for
overseeing such composite currency;
(15) the currency or currencies in which payment of the
principal of (and premium, if any) and interest on the Debt Securities
will be made, the currency or currencies, if any, in which payment of
the principal of (and premium, if any) or the interest on Registered
Securities, at the election of each of the Holders thereof, may also be
payable and the periods within which and the terms and conditions upon
which such election is to be made and the Exchange Rate and Exchange
Rate Agent;
(16) if the amount of payments of principal of (and premium,
if any) or interest on the Debt Securities of the series may be
determined with reference to an index based on a currency or currencies
other than that in which the Debt Securities are denominated or
designated to be payable, the manner in which such amounts shall be
determined;
(17) if payments of principal of (and premium, if any) or
interest on the Debt Securities of the series are to be made in a
Foreign Currency other than the currency in which such Debt Securities
are denominated, the manner in which the Exchange Rate with respect to
such payments shall be determined or if the Exchange Rate is to be
determined otherwise than as provided in Section 1.1;
(18) any Events of Default with respect to Debt Securities of
such series, if not set forth herein;
(19) any other covenant or warranty included for the benefit
of the Debt Securities of the series in addition to (and not
inconsistent with) those set forth herein for the benefit of Debt
Securities of all series, or any other covenant or warranty included
for the benefit of Debt Securities of the series in lieu of any
covenant or warranty set forth herein for the benefit of Debt
Securities of all series, or any provision that any covenant or
warranty set forth herein for the benefit of Debt Securities of all
series shall not be for the benefit of Debt Securities of such series,
or any combination of such covenants, warranties or provisions and the
applicability, if any, of the provisions of Section 10.8 to such
covenants and warranties;
(20) the terms and conditions, if any, pursuant to which the
Company's obligations under this Indenture may be terminated through
the deposit of money or Eligible Instruments as provided in Articles
Four and Fifteen;
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<PAGE> 27
(21) the Person or Persons who shall be Security Registrar for
the Debt Securities of such series if other than the Trustee, and the
place or places where the Security Register for such series shall be
maintained and the Person or Persons who will be the initial Paying
Agent or Agents, if other than the Trustee; and
(22) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series and the coupons
appertaining to Bearer Securities of such series, if any, shall be substantially
identical except, in the case of Registered Securities, as to denomination and
except as may otherwise be provided in or pursuant to such Board Resolution and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto.
Debt Securities of any particular series may be issued at
various times, with different dates on which the principal or any installment of
principal is payable, with different rates of interest, if any, or different
methods by which rates of interest may be determined, with different dates on
which such interest may be payable and with different Redemption or Repayment
Dates and may be denominated in different currencies or payable in different
currencies.
If any of the terms of a series of Debt Securities are
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of the series.
SECTION 3.2. Denominations.
Debt Securities of each series shall be issuable in such form
and denominations as shall be specified in the form of Debt Security for such
series approved or established pursuant to Section 2.1 or in the Officers'
Certificate delivered pursuant to Section 3.1. In the absence of any
specification with respect to the Debt Securities of any series, the Registered
Securities of such series, if any, shall be issuable in denominations of $1,000
and any integral multiple thereof and the Bearer Securities of such series, if
any, shall be issuable in the denominations of $5,000.
SECTION 3.3. Execution, Authentication, Delivery and Dating.
(a) The Debt Securities shall be executed on behalf of the
Company by its Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by its Treasurer or one of its Assistant
Treasurers or its Secretary or one of its Assistant Secretaries under its
corporate seal reproduced thereon. The signature of any of these officers on the
Debt Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of an authorized officer of the Company.
Debt Securities and coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the
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authentication and delivery of such Debt Securities or coupons of any series or
did not hold such offices at the date of such Debt Securities or coupons.
(b) At any time and from time to time after the execution and
delivery of this Indenture, Debt Securities of any series may be executed by the
Company and delivered to the Trustee for authentication, and, except as
otherwise provided in this Article Three, shall thereupon be authenticated and
delivered by the Trustee upon Company Order, without any further action by the
Company; provided, however, that, in connection with its original issuance or
any sale during the "restricted period" as defined in Section
1.163-5(c)(2)(i)(b)(7) of the U.S. Treasury Regulations, a Bearer Security may
be delivered only outside the United States and, except in the case of a
temporary Global Security, only if the Company or its agent shall have received
the certification required pursuant to Sections 3.4(b)(iii) and (iv), unless
such certification shall have been provided earlier pursuant to section
3.4(b)(v) hereof, and only if the Company has no reason to know that such
certification is false.
To the extent authorized in or pursuant to a Board Resolution
and set forth in an Officers' Certificate, or established in one or more
indentures supplemental hereto, such written Company Order may be given by any
one officer or employee of the Company, may be electronically transmitted, and
may provide instructions as to registration of holders, principal amounts, rates
of interest, maturity dates and other matters contemplated by such Board
Resolution and Officers' Certificate or supplemental indenture to be so
instructed in respect thereof. Before authorizing and delivering the first Debt
Securities of any series (and upon request of the Trustee thereafter), the
Company shall deliver to the Trustee (i) the certificates called for under
Sections 2.1 and 3.1 hereof and (ii) an Opinion of Counsel described in the next
sentence.
In authenticating such Debt Securities, and accepting the
additional responsibilities under this Indenture in relation to any Debt
Securities, the Trustee shall be entitled to receive, prior to the initial
authentication of such Debt Securities, and (subject to Section 6.1) shall be
fully protected in relying upon:
(i) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution
certified by the Secretary or an Assistant Secretary of the Company;
(ii) an executed supplemental indenture, if any, relating
thereto;
(iii) an Officers' Certificate setting forth the form and
terms of the Debt Securities of such series and coupons, if any,
pursuant to Sections 2.1 and 3.1 and stating that all conditions
precedent provided for in this Indenture relating to the issuance of
such Debt Securities have been complied with; and
(iv) an Opinion of Counsel stating
(A) that the form of such Debt Securities and
coupons, if any, has been established in or pursuant to a
Board Resolution or by a supplemental indenture as permitted
by Section 2.1 in conformity with the provisions of this
Indenture;
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<PAGE> 29
(B) that the terms of such Debt Securities and
coupons, if any, have been established in or pursuant to a
Board Resolution or by a supplemental indenture as permitted
by Section 3.1 in conformity with the provisions of this
Indenture; and
(C) that such Debt Securities and coupons, if any,
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 binding obligations of the Company, enforceable in
accordance with their terms, subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally and the application of general principles of
equity and except further as enforcement thereof may be
limited by (i) requirements that a claim with respect to any
Debt Securities denominated other than in Dollars (or a
Foreign Currency or currency unit judgment in respect of such
claim) be converted into Dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or
(ii) governmental authority to limit, delay or prohibit the
making of payments in Foreign Currencies or currency units or
payments outside the United States.
(D) that all laws and requirements in respect of the
execution and delivery by the Company of such Debt Securities
have been complied with.
(c) If the Company shall establish pursuant to Section 3.1
that the Debt Securities of a series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the
Trustee shall, in accordance with this Section and the Company Order with
respect to such series, authenticate and deliver one or more Global Securities
in permanent or temporary form that (i) shall represent and shall be denominated
in an aggregate amount equal to the aggregate principal amount of the
Outstanding Debt Securities of such series to be represented by one or more
Global Securities, (ii) shall be registered in the name of the Depositary for
such Global Security or Securities or the nominee of such Depositary and (iii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions.
(d) The Trustee shall have the right to decline to
authenticate and deliver any Debt Securities under this Section 3.3 if the
issuance of such Debt Securities will adversely affect the Trustee's own rights,
duties or immunities under the Debt Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
(e) If all the Debt Securities of any series are not to be
issued at one time, it shall not be necessary to deliver an Opinion of Counsel
at the time of issuance of each Debt Security, but such Opinion of Counsel,
with appropriate modifications, may instead be delivered at or prior to the time
of the first issuance of Debt Securities of such series.
(f) Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated as of the date specified as
contemplated by Section 3.1.
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(g) No Debt Security or coupon attached thereto shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose, unless there appears on such Debt Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee, and such certificate upon any Debt Security shall be conclusive
evidence, and the only evidence, that such Debt Security has been duly
authenticated and delivered hereunder. Except as permitted by Section 3.6, the
Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled.
Notwithstanding the foregoing, if any Debt Security or portion thereof shall
have been duly authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Debt Security to the Trustee
for cancellation as provided in Section 3.9 together with a written statement
(which need not comply with Section 1.2 and need not be accompanied by an
Opinion of Counsel) stating that such Debt Security or portion thereof has never
been issued and sold by the Company, for all purposes of this Indenture such
Debt Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
(h) Each Depositary designated pursuant to Section 3.1 for a
Global Security in registered form must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Securities Exchange Act of 1934 and any other applicable statute or
regulation.
SECTION 3.4. Temporary Debt Securities.
(a) Pending the preparation of definitive Debt Securities of
any series, the Company may execute, and upon receipt of documents required by
Sections 3.1 and 3.3, together with a Company Order, the Trustee shall
authenticate and deliver, temporary Debt Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor and terms of the definitive Debt
Securities in lieu of which they are issued in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Debt Securities may determine, as evidenced by their
signatures on such Debt Securities. In the case of Debt Securities of any series
issuable as Bearer Securities, such temporary Debt Securities may be in global
form, representing all or any part of the Outstanding Debt Securities of such
series.
(b) Unless otherwise provided pursuant to Section 3.1:
(i) Except in the case of temporary Debt Securities in global
form, if temporary Debt Securities of any series are issued, the
Company will cause definitive Debt Securities of such series to be
prepared without unreasonable delay. After the preparation of
definitive Debt Securities of such series, the related temporary Debt
Securities shall be exchangeable for such definitive Debt Securities
upon surrender of the temporary Debt Securities of such series at the
office or agency of the Company in the Place of Payment for such
series, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Debt Securities of any series
(accompanied, if applicable, by all un-
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matured coupons and all matured coupons in default appertaining
thereto), the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a like principal amount of definitive
Debt Securities of the same series of like tenor and terms and of
authorized denominations; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered
Security; and provided, further, that a Bearer Security shall be
delivered in exchange for a Bearer Security only in compliance with the
conditions set forth in Section 3.5. Until so exchanged, the temporary
Registered Securities of any series shall in all respects be entitled
to the same benefits under this Indenture as defined Registered
Securities of such series.
(ii) If Debt Securities of any series are issued in temporary
global form, any such temporary Global Security shall, unless otherwise
provided pursuant to section 3.1, to be delivered to the Depositary for
the benefit of Euroclear and CEDEL S.A., for credit to the respective
accounts of the beneficial owners of such Debt Securities (or to such
other accounts as they may direct).
(iii) Without unnecessary delay but in any event not later
than the date specified in, or determined pursuant to the terms of, any
such temporary Global Security (the "Global Exchange Date"), the
Company shall deliver definitive Debt Securities to the Trustee or the
agent appointed by the Company pursuant to Section 3.1 to effect the
exchange of the temporary Global Security for definitive Debt
Securities (the "Global Exchange Agent"), in an aggregate principal
amount equal to the principal amount of such temporary Global Security,
executed by the Company. On or after the Global Exchange Date, such
temporary Global Security shall be surrendered by the Depositary to the
Global Exchange Agent, to be exchanged, in whole or from time to time
in part, for definitive Debt Securities without charge and the Trustee
or the Global Exchange Agent, if authorized by the Trustee pursuant to
Section 6.14, shall authenticate and deliver, in exchange for each
portion of such temporary Global Security, an equal aggregate principal
amount of definitive Debt Securities of the same series of authorized
denominations and of like tenor and terms as the portion of such
temporary Global Security to be exchanged. Upon any exchange of a part
of such temporary Global Security for definitive Debt Securities, the
portion of the principal amount and any interest thereon so exchanged
shall be endorsed by the Global Exchange Agent on a schedule to such
temporary Global Security, whereupon the principal amount and interest
payable with respect to such temporary Global Security shall be reduced
for all purposes by the amount so exchanged and endorsed. The
definitive Debt Securities to be delivered in exchange for any such
temporary Global Security shall be in bearer form, registered form,
global registered form or global bearer form, or any combination
thereof, as specified as contemplated by Section 3.1, and, if any
combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that, in the case of the exchange of
the temporary Global Security for definitive Bearer Securities
(including a definitive Global Bearer Security), upon such presentation
by the Depositary, such temporary Global Security shall be accompanied
by a certificate signed by Euroclear as to the portion of such
temporary Global Security held for its account then to be exchanged and
a certificate signed by CEDEL S.A. as to the portion of such temporary
Global Security held for its account then to be
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exchanged, each in the form set forth in Exhibit B to this Indenture,
unless such certificate(s) shall have been provided earlier pursuant to
section 3.4(b)(v) hereof; and provided, further, that definitive Bearer
Securities (including a definitive Global Bearer Security) shall be
delivered in exchange for a portion of a temporary Global Security only
in compliance with the requirements of Section 3.3.
(iv) The interest of a beneficial owner of Debt Securities of
a series in a temporary Global Security shall be exchanged for
definitive Debt Securities of the same series and of like tenor and
terms following the Global Exchange Date when the account holder
instructs Euroclear or CEDEL S.A., as the case may be, to request such
exchange on such account holder's behalf and, in the case of the
exchange of the temporary Global Security for definitive Bearer
Securities (including a definitive Global Bearer Security), unless such
certificate(s) shall have been provided earlier pursuant to Section
3.4(b)(v) hereof, the account holder delivers to Euroclear or CEDEL
S.A., as the case may be, a certificate in the form set forth in
Exhibit A-1 and, if applicable, A-2 to this Indenture, dated no earlier
than 15 days prior to the Global Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and CEDEL
S.A., the Global Exchange Agent, any authenticating agent appointed for
such series of Debt Securities and each Paying Agent. Unless otherwise
specified in such temporary Global Security, any such exchange shall be
made free of charge to the beneficial owners of such temporary Global
Security, except that a Person receiving definitive Debt Securities
must bear the cost of insurance, postage, transportation and the like
in the event that such Person does not take delivery of such definitive
Debt Securities in person at the offices of Euroclear and CEDEL S.A.
Definitive Debt Securities in bearer form to be delivered in exchange
for any portion of a temporary Global Security shall be delivered only
outside the United States.
(v) Until exchanged in full as hereinabove provided, the
temporary Debt Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Debt
Securities of the same series and of like tenor and terms authenticated
and delivered hereunder, except that interest payable on a temporary
Global Security on an Interest Payment Date shall be payable to
Euroclear and CEDEL S.A. on such Interest Payment Date only if there
has been delivery by Euroclear and CEDEL S.A. to the Global Exchange
Agent of a certificate or certificates in the form set forth in Exhibit
B to this Indenture dated no earlier than the first Interest Payment
Date, for credit without further interest on or after such Interest
Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary Global Security on such Interest
Payment Date and who have each delivered to Euroclear or CEDEL S.A., as
the case may be, a certificate in the form set forth in Exhibit A-1
and, if applicable, A-2 to this Indenture dated no earlier than the
first Interest Payment Date. Any interest so received by Euroclear and
CEDEL S.A. and not paid as herein provided prior to the Global Exchange
Date shall be returned to the Global Exchange Agent which, upon
expiration of two years after such Interest Payment Date, shall repay
such interest to the Company in accordance with Section 10.3.
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SECTION 3.5. Registration; Registration of Transfer and
Exchange.
The Company shall cause to be kept at one of the offices or
agencies to be maintained by the Company in accordance with the provisions of
this Section 3.5 and Section 10.2, with respect to the Debt Securities of each
series which are Registered Securities, a register (herein sometimes referred to
as the "Security Register") in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. Pursuant to Section 3.1,
the Company shall appoint, with respect to Debt Securities of each series which
are Registered Securities, a "Security Registrar" for the purpose of registering
such Debt Securities and transfers and exchanges of such Debt Securities as
herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained for
such purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series of any authorized denomination or
denominations, of like tenor and terms and aggregate principal amount.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series of
any authorized denomination or denominations, of like tenor and terms and
aggregate principal amount, and of a like Stated Maturity upon surrender of the
Registered Securities to be exchanged at such office or agency. Whenever any
Registered Securities are surrendered for exchange, the Company shall execute
and the Trustee shall make available for delivery, the Registered Securities
which the Holder is entitled to receive. Bearer Securities may not be delivered
in exchange for Registered Securities.
If Debt Securities of any series are issuable as both
Registered Securities and Bearer Securities then, at the option of the Holder
and upon request conferred in writing, Registered Securities or Bearer
Securities of any series may be issued in exchange for Bearer Securities (except
as otherwise specified as contemplated by Section 3.1 with respect to a Bearer
Security in global form) of the same series, of any authorized denominations and
of like tenor and terms, aggregate principal amount and of a like Stated
Maturity, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
such exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company and the Trustee in an amount equal to
the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that, except as otherwise
provided in Section 10.2, interest represented by coupons shall be payable only
upon presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer Se-
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curity of any series is surrendered at any such office or agency in exchange for
a Registered Security of the same series and like tenor and terms after the
close of business at such office or agency of (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date of payment, as the case may be and
interest will not be payable in respect of the Registered Security issued in
exchange for such Bearer Security but will be payable only to the Holder of such
coupon when due in accordance with the terms of this Indenture. The Company
shall execute, and the Trustee shall authenticate and make available for
delivery, the Registered Security or Securities which the Holder making the
exchange is entitled to receive.
Whenever any Debt Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Debt Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Debt Securities of a
series notifies the Company that it is unwilling or unable to continue as
Depositary for the Debt Securities of such series or if at any time the
Depositary for the Debt Securities of such series shall no longer be eligible
under Section 3.3(h), the Company shall appoint a successor Depositary with
respect to the Debt Securities of such series. If a successor Depositary for the
Debt Securities of such series is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such ineligibility,
the Company's election pursuant to Section 3.1(9) shall no longer be effective
with respect to the Debt Securities of such series and the Company will execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of definitive Debt Securities of such series, will authenticate and
deliver, Debt Securities of such series in definitive form in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such series in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion
determine that the Debt Securities of any series issued in the form of one or
more Global Securities shall no longer be represented by such Global Security or
Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Debt Securities of such series, will authenticate and deliver, Debt Securities
of such series in definitive form and in an aggregate principal amount equal to
the principal amount of the Global Security or Securities representing such
series in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 3.1 with
respect to a series of Debt Securities, the Depositary for such series of Debt
Securities may surrender a Global Security for such series of Debt Securities in
exchange in whole or in part for Debt Securities of such series of like tenor
and terms and in definitive form on such terms as are acceptable to the Company
and such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without charge to any Holder,
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(a) to each Person specified by such Depositary a new
Debt Security or Securities of the same series, of like tenor and terms and
of any authorized denominations as requested by such person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Global Security; and
(b) to such Depositary a new Global Security of like
tenor and terms and in a denomination equal to the difference, if any,
between the principal amount of the surrendered Global Security and the
aggregate principal amount of Debt Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee will authenticate and
deliver Debt Securities (a) in definitive registered form in authorized
denominations, if the Debt Securities of such series are issuable as Registered
Securities, (b) in definitive bearer form in authorized denominations, with
coupons attached, if the Debt Securities of such series are issuable as Bearer
Securities or (c) as either Registered or Bearer Securities, as shall be
specified by the beneficial owner thereof, if the Debt Securities of such series
are issuable in either form; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Global Security unless
the Company or its agent shall have received from the person entitled to receive
the definitive Bearer Security a certificate substantially in the form set forth
in Exhibit A-1 and, if applicable, A-2 hereto; and provided further that
delivery of a Bearer Security shall occur only outside the United States; and
provided further that no definitive Bearer Security will be issued if the
Company has reason to know that any such certificate is false.
Upon the exchange of a Global Security for Debt Securities in
definitive form, such Global Security shall be cancelled by the Trustee.
Registered Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Registered Securities to the persons in whose names
such Debt Securities are so registered. The Trustee shall deliver Bearer
Securities issued in exchange for a Global Security pursuant to this Section to
the persons, and in such authorized denominations, as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee; provided, however, that
no definitive Bearer Security shall be delivered in exchange for a temporary
Global Security unless the Company or its agent shall have received from the
person entitled to receive the definitive Bearer Security a certificate
substantially in the form set forth in Exhibit A-1 and, if applicable, A-2
hereto; and provided further that delivery of a Bearer Security shall occur only
outside the United States; and provided further that no definitive Bearer
Security will be issued if the Company has reason to know that any such
certificate is false.
All Debt Securities issued upon any registration of transfer
or exchange of Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of transfer
or exchange.
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Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company,
the Security Registrar or the Trustee) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed, by the Holder thereof or such Holder's
attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer, registration of transfer or exchange of
Debt Securities, other than exchanges expressly provided in this Indenture to be
made at the Company's own expense or without expense or without charge to the
Holders.
The Company shall not be required (i) to issue, register the
transfer of or exchange Debt Securities of any particular series to be redeemed
for a period of fifteen days preceding the first publication of the relevant
notice of redemption or, if Registered Securities are outstanding and there is
no publication, the mailing of the relevant notice of redemption of Debt
Securities of such series selected for redemption under Section 11.3 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Registered Security so selected for redemption in
whole or in part, except the unredeemed portion of such Registered Security
being redeemed in part, or (iii) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged for a Registered
Security of like tenor and terms of that series, provided that such Registered
Security shall be simultaneously surrendered for redemption.
Notwithstanding anything herein to the contrary, the exchange
of Bearer Securities into Registered Securities shall be subject to applicable
laws and regulations in effect at the time of exchange; neither the Company, the
Trustee nor the Security Registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel that as a result
of such exchanges the Company would suffer adverse consequences under the United
States Federal income tax laws and regulations then in effect and the Company
has delivered to the Trustee a Company Order directing the Trustee not to make
such exchanges thereafter unless and until the Trustee receives a subsequent
Company Order to the contrary. The Company shall deliver copies of such Company
Orders to the Security Registrar.
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Debt
Securities.
If (i) any mutilated Debt Security or a Bearer Security with a
mutilated coupon appertaining to it is surrendered to a Paying Agent outside the
United States designated by the Company, or, in the case of any Registered
Security, to the Trustee, or (ii) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Debt Security or
coupon, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company and the Trustee that such Debt Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute and
upon its written request the Trustee shall authenticate
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and deliver, in exchange for any such mutilated Debt Security or Bearer Security
with a mutilated coupon appertaining to it or to which a destroyed, lost or
stolen coupon appertains (with all appurtenant coupons not destroyed, lost or
stolen) or in lieu of any such destroyed, lost or stolen Debt Security, a new
Debt Security of like tenor and terms and principal amount, bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupon, if any,
appertaining to such destroyed, lost or stolen Debt Security or to the Debt
Security to which such destroyed, lost or stolen coupon appertains; provided,
however, that any such new Bearer Security will be delivered only in compliance
with the conditions set forth in Section 3.5.
In case any such mutilated, destroyed, lost or stolen Debt
Security or coupon has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Debt Security, pay such Debt
Security or coupon; provided, however, that payment of principal of (and
premium, if any) and any interest on Bearer Securities shall, except as
otherwise provided in Section 10.2, be payable only at an office or agency
located outside the United States; and provided, further, that, with respect to
any such coupons, interest represented thereby (but not any additional amounts
payable as provided in Section 10.6), shall be payable only upon presentation
and surrender of the coupons appertaining thereto.
Upon the issuance of any new Debt Security or coupons 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 and printing
expenses) connected therewith.
Every new Debt Security of any series, with its coupons, if
any, issued pursuant to this Section in lieu of any destroyed, lost or stolen
Debt Security, or in exchange for a Bearer Security to which a destroyed, lost
or stolen coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security and its coupons, if any, or the destroyed, lost or stolen coupon shall
be at any time enforceable by anyone, and any such new Debt Security and
coupons, if any, shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Debt Securities of that series and
their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Debt
Securities or coupons.
SECTION 3.7. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided pursuant to Section 3.1, interest
on any Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Registered Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without
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the coupon relating to such Interest Payment Date and interest will not be
payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture. At the option of the Company, payment of interest on any Registered
Security may be made by check in the currency designated for such payment
pursuant to the terms of such Registered Security mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or
by wire transfer to an account in such currency designated by such Person in
writing not later than ten days prior to the date of such payment.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered Holder on the relevant Regular Record Date by virtue
of his 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 Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered Security of
such series and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money and/or,
to the extent such Debt Securities are denominated and payable in
Dollars only, Eligible Instruments the payments of principal and
interest on which when due (and without reinvestment and providing no
tax liability will be imposed upon the Trustee or the Holder of such
Registered Securities) will provide money in such amounts as will
(together with any money irrevocably deposited in trust with the
Trustee, without investment) be 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 and/or Eligible Instruments
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. Unless the Trustee is acting as the Security
Registrar, promptly after such Special Record Date, the Company shall
furnish the Trustee with a list, or shall make arrangements
satisfactory to the Trustee with respect thereto, of the names and
addresses of, and principal amounts of Registered Securities of such
series held by, the Holders appearing on the Security Register at the
close of business on such Special Record Date. In the name and at the
expense of the Company, the Trustee 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 Registered
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment
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of such Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such series after
the close of business at such office or agency on any Special Record
Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such
proposed date of payment and Defaulted Interest will not be payable on
such proposed date of payment in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions
of this Indenture.
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
the Registered Securities may be listed, and upon such notice as maybe
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 Debt
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Debt Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debt Security.
Subject to the limitations set forth in Section 10.2, the
Holder of any coupon appertaining to a Bearer Security shall be entitled to
receive the interest payable on such coupon upon presentation and surrender of
such coupon on or after the Interest Payment Date of such coupon at an office or
agency maintained for such purpose pursuant to Section 10.2.
SECTION 3.8. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or of the Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Section 3.7)
interest on such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Bearer Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Bearer Security or coupon be over-
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due, and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 3.9. Cancellation.
Unless otherwise provided with respect to a series of Debt
Securities, all Debt Securities and coupons surrendered for payment, redemption,
repayment, transfer, exchange or credit against any sinking fund payment
pursuant to this Indenture, shall, if surrendered to the Company or any agent of
the Company, be delivered to the Trustee and shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any Debt
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Debt Securities so delivered
shall be promptly cancelled by the Trustee. No Debt Securities shall be
authenticated in lieu of or in exchange for any Debt Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Debt Securities and coupons held by the Trustee shall be destroyed and
certification of their destruction delivered to the Company unless by a Company
Order the Company shall direct that the cancelled Debt Securities or coupons be
returned to it.
SECTION 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1
for Debt Securities of any series, interest on the Debt Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.11. Certification by a Person Entitled to Delivery
of a Bearer Security.
Whenever any provision of this Indenture or a Debt Security
contemplates that certification by given by a Person entitled to delivery of a
Bearer Security, such certification shall be provided substantially in the form
of Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall
be approved by the Company and consented to by the Trustee whose consent shall
not unreasonably be withheld.
SECTION 3.12. Judgments.
The Company may provide, pursuant to Section 3.1, for the Debt
Securities of any series that, to the fullest extent possible under applicable
law and except as may otherwise be specified as contemplated in Section 3.1, (a)
the obligation, if any, of the Company to pay the principal of (and premium, if
any) and interest on the Debt Securities of any series and any appurtenant
coupons in a Foreign Currency, composite currency or Dollars (the "Designated
Currency") as may be specified pursuant to Section 3.1 is of the essence and
agrees that judgments in
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respect of such Debt Securities shall be given in the Designated Currency; (b)
the obligation of the Company to make payments in the Designated Currency of the
principal of (and premium, if any) and interest on such Debt Securities and any
appurtenant coupons shall, notwithstanding any payment in any other currency
(whether pursuant to a judgment or otherwise), be discharged only to the extent
of the amount in the Designated Currency that the Holder receiving such payment
may, in accordance with normal banking procedures, purchase with the sum paid in
such other currency (after any premium and cost of exchange) in the country of
issue of the Designated Currency in the case of Foreign Currency or Dollars or
in the international banking community in the case of a composite currency on
the Business Day immediately following the day on which such Holder receives
such payment; (c) if the amount in the Designated Currency that may be so
purchased for any reason falls short of the amount originally due, the Company
shall pay such additional amounts as may be necessary to compensate for such
shortfall; and (d) any obligation of the Company not discharged by such payment
shall be due as a separate and independent obligation and, until discharged as
provided herein, shall continue in full force and effect.
SECTION 3.13. CUSIP Numbers.
The Company in issuing the Debt Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Debt Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Debt Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of Debt Securities herein expressly provided for and rights to receive
payments of principal and interest thereon and any right to receive additional
amounts, as provided in Section 10.6) and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture when
(1) either
(A) all Debt Securities theretofore authenticated and
delivered and all coupons appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered in
exchange for Registered Securities and maturing after such
exchange, surrender of which is not required or has been
waived as provided in
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Section 3.5, (ii) Debt Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6, (iii) coupons appertaining to
Bearer Securities called for redemption or surrendered for
repayment and maturing after the relevant Redemption Date or
Repayment Date, as appropriate, surrender of which has been
waived as provided in Section 11.6 or 13.3 and (iv) Debt
Securities and coupons for whose payment money and/or Eligible
Instruments have 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 10.3) have been delivered to the Trustee
cancelled or for cancellation; or
(B) all such Debt Securities not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice by
the Trustee in the name, and at the expense, of the Company.
and the Company, in the case of (B)(i), (B)(ii) or (B)(iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose money and/or, to the extent such Debt Securities are
denominated and payable in Dollars only, Eligible Instruments the payments of
principal and interest on which when due (and without reinvestment and providing
no tax liability will be imposed upon the Trustee or the Holders of Debt
Securities) will provide money in such amounts as will (together with any money
irrevocably deposited in trust with the Trustee, without investment) be
sufficient to pay and discharge the entire indebtedness on such Debt Securities
and coupons of such series for principal (and premium, if any) and interest, and
any mandatory sinking fund, repayment or analogous payments thereon, on the
scheduled due dates therefor to the date of such deposit (in the case of Debt
Securities and coupons which have become due and payable) or to the Stated
Maturity or Redemption Date, if any, and all Repayment Dates (in the case of
Debt Securities repayable at the option of the Holders thereof); provided,
however, that in the event a petition for relief under the Bankruptcy Reform Act
of 1978 or a successor statute is filed with respect to the Company within 91
days after the deposit, the obligations of the Company under the Indenture with
respect to the Debt Securities of such series shall not be deemed terminated or
discharged, and in such event the Trustee shall be required to return the
deposited money and Eligible Instruments to the Company.
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with, and
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(4) in the case of a deposit and discharge pursuant to
subclause (B) of clause (1) of this Section the Company has delivered
to the Trustee an Opinion of Counsel to the effect that the Company has
received from or there has been published by the Internal Revenue
Service a ruling to the effect that Holders of the Debt Securities of
the series will not recognize income, gain or loss for U.S. Federal
income tax purposes as a result of such deposit and discharge.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7 and, if money or
Eligible Instruments shall have been deposited with the Trustee pursuant to
Subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 10.3 shall survive.
SECTION 4.2. Application of Trust Money and Eligible
Instruments.
Subject to the provisions of the last paragraph of Section
10.3, all money and Eligible Instruments deposited with the Trustee pursuant to
Section 4.1, 4.3 or 15.1 shall be held in trust and such money and the principal
and interest received on such Eligible Instruments shall be applied by it, in
accordance with the provisions of the Debt Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money or Eligible Instruments have been
deposited with the Trustee.
SECTION 4.3. Satisfaction, Discharge and Defeasance of Debt
Securities of any Series.
If this Section 4.3 is specified, as contemplated by Section
3.1, to be applicable to Debt Securities of any series, then, notwithstanding
Section 4.1, (i) the Company shall be deemed to have paid and discharged the
entire indebtedness on all the Outstanding Debt Securities of any such series
and related coupons; (ii) the provisions of this Indenture as it relates to such
Outstanding Debt Securities and related coupons shall no longer be in effect
(except as to the rights of Holders of Debt Securities to receive, from the
trust fund described in subparagraph (1) below, payment of (x) the principal of
(and premium, if any) and any installment of principal of (and premium, if any)
or interest on such Debt Securities and related coupons on the Stated Maturity
of such principal (and premium, if any) or installment of principal (and
premium, if any) or interest or (y) any mandatory sinking fund payments or
analogous payments applicable to the Debt Securities of that series on that day
on which such payments are due and payable in accordance with the terms of this
Indenture and of such Debt Securities, the Company's obligations with respect to
such Debt Securities under Sections 3.4, 3.5, 3.6, 10.2, 10.3 and 10.6 and the
rights, powers, trusts, duties and immunities of the Trustee hereunder,
including those under Section 6.7 hereof); and (iii) the Trustee, at the expense
of the Company, shall, upon Company Order, execute proper instruments
acknowledging satisfaction and discharge of such indebtedness, when
(1) either
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(A) with respect to all Outstanding Debt Securities
of such series and related coupons, with reference to this
Section 4.3, the Company has deposited or caused to be
deposited with the Trustee irrevocably, as trust funds in
trust, money and/or, to the extent such Debt Securities are
denominated and payable in Dollars only, Eligible Instruments
the payments of principal and interest on which when due (and
without reinvestment and providing no tax liability will be
imposed upon the Trustee or the Holders of such Debt
Securities) will provide money in such amounts as will
(together with any money irrevocably deposited in trust with
the Trustee, without investment) be sufficient to pay and
discharge (i) the principal of (and premium, if any) and
interest on the Outstanding Debt Securities of that series and
related coupons on the Stated Maturity of such principal or
interest and (ii) any mandatory sinking fund payments or
analogous payments applicable to Debt Securities of such
series on the date on which such payments are due and payable
in accordance with the terms of this Indenture and of such
Debt Securities; or
(B) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 3.1, to be applicable to the Debt
Securities of such series;
(2) the Company has paid or caused to be paid all sums payable
with respect to the Outstanding Debt Securities of such series and
related coupons;
(3) such deposit will not result in a breach of, or constitute
a default under, this Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound;
(4) no Event of Default or event which with the giving of
notice or lapse of time, or both, would become an Event of Default with
respect to the Debt Securities of such series shall have occurred and
be continuing on the date of such deposit and no Event of Default under
Section 5.1(6) or Section 5.1(7) or event which with the giving of
notice or lapse of time, or both, would become an Event of Default
under Section 5.1(6) or Section 5.1(7) shall have occurred and be
continuing on the 91st day after such date;
(5) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (a) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (b)
since the date of this Indenture there has been a change in applicable
Federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of Debt
Securities and related coupons of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit, defeasance and
discharge had not occurred;
(6) if the Debt Securities of that series are then listed on
any domestic or foreign securities exchange, the Company shall have
delivered to the Trustee an Opinion of
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Counsel to the effect that such deposit, defeasance and discharge will not cause
such Debt Securities to be delisted; and
(7) 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 the entire indebtedness of all Outstanding Debt Securities
and related coupons have been complied with.
Any deposits with the Trustee referred to in Section 4.3(1)(A)
above shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee. If any Outstanding
Debt Securities of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory sinking fund requirement, the applicable escrow or
trust agreement shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this
Section 4.3 with respect to all the Outstanding Debt Securities of any series,
the terms and conditions of such series, including the terms and conditions with
respect thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that the Company shall not be discharged
from any payment obligations in respect of Debt Securities of such series which
are deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law.
Notwithstanding the cessation, termination and discharge of
all obligations, covenants and agreements (except as provided above in this
Section 4.3) of the Company under this Indenture with respect to any series of
Debt Securities, the obligations of the Company to the Trustee under Section
6.7, and the obligations of the Trustee under Section 4.2 and the last paragraph
of Section 10.3, shall survive with respect to such series of Debt Securities.
ARTICLE FIVE
REMEDIES
SECTION 5.1. Events of Default.
"Event of Default", wherever used herein with respect to Debt
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) [default in the payment of principal of or premium, if
any, on any Debt of such series Security when due; or]
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(2) [default for 30 days in the payment of interest, if any,
on the Debt Security of such series or related coupon, if any, when
due; or]
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Debt Security of such 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 whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of Debt Securities of
a series other than such series), and continuance of such default or
breach for a period of 30 days after there as been given by registered
or certified mail, to the Company by the Trustee, or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Debt Securities of such series, a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(5) the failure of the Company, subject to the provisions of
Section 10.8, to observe and perform the covenants contained in Section
10.5; 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 for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(7) the commencement by the Company 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
it to the entry of 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 to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it 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 it of an assignment for the benefit of creditors, or the
admission by it 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
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(8) any other Event of Default, if any, provided with respect
to Debt Securities of such series specified as contemplated by Section
3.1.
SECTION 5.2. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Debt Securities of any
series at the time Outstanding occurs and its continuing, then and in every such
case the Trustee or the Holders of not less than 25% in principal amount of
Outstanding Debt Securities of such series may declare the principal amount (or,
if the Debt Securities of such series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of such
series) of and all accrued but unpaid interest on all the Debt Securities of
such series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by such Holders), and upon any such
declaration such principal amount (or specified amount) shall become immediately
due and payable.
At any time after such a declaration of acceleration with
respect to Debt Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Debt Securities of such series, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all Debt
Securities of such series and any related coupons,
(B) the principal of (and premium, if any, on) any
Debt Securities of such series which have become due otherwise
than by such declaration of acceleration and interest thereon
at the rate or rates prescribed therefor in such Debt
Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest on each
Debt Security and any related coupons at the rate or rates
prescribed therefor in such Debt Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expense,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Debt Securities of
such series, other than the non-payment of the principal of Debt
Securities of such series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.13.
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No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of
interest on any Debt Security or any related coupon when such interest
becomes due and payable and such default continues for a period of 30
days,
(2) default is made in the payment of the principal of (or
premium, if any, on) any Debt Security at the Maturity thereof, or
(3) default is made on any sinking fund payment or analogous
obligation when the same becomes due pursuant to the terms of the Debt
Securities or any series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities and coupons, the amount then due and payable on
such Debt Securities and coupons for principal (and premium, if any) and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest upon the overdue principal (and premium, if any) and, upon
overdue installments of interest, at the rate or rates prescribed therefor in
such Debt Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment of final decree, and may
enforce the same against the Company or any other obligor upon such Debt
Securities and coupons and collect the moneys adjudged or decreed to be payable
in the manner provided by law out of the property of the Company or any other
obligor upon such Debt Securities and coupons, wherever situated.
If a Default with respect to Debt Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Debt Securities of such
series and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceedings, or any voluntary or involuntary case under the
Federal bankruptcy laws as now or hereafter constituted,
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relative to the Company or any other obligor upon the Debt Securities of a
particular series or any related coupons or the property of the Company or of
such other obligor or their creditors, the Trustee (irrespective of whether the
principal of such Debt Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in such
proceedings or otherwise,
(1) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Debt Securities of such series and any appurtenant
coupons, to file such other papers or documents as may be necessary or
advisable and to take any and all other actions under the Trust
Indenture Act 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
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator or
other similar official in any such proceeding is hereby authorized by each
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 6.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Debt Securities or coupons or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 5.5. Trustee May Enforce Claims without Possession of
Debt Securities or Coupons.
All rights of action and claims under this Indenture or the
Debt Securities or coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Debt Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name, as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the Debt
Securities and coupons in respect of which such judgment has been recovered.
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SECTION 5.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(and premium, if any) or interest, upon presentation of the Debt Securities or
coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 6.7;
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest on the Debt
Securities and any coupons, in respect of which or for the benefit of
which such money has been collected ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Debt Securities and any coupons for principal (and premium, if any) and
interest, respectively. The Holders of each series of Debt Securities
denominated in Euros, any other composite currency or a Foreign
Currency and any matured coupons relating thereto shall be entitled to
receive a ratable portion of the amount determined by the Exchange Rate
Agent by converting the principal amount Outstanding of such series of
Debt Securities and matured but unpaid interest on such series of Debt
Securities in the currency in which such series of Debt Securities is
denominated into Dollars at the Exchange Rate as of the date of
declaration of acceleration of the Maturity of the Debt Securities; and
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
SECTION 5.7. Limitation on Suits.
No Holder of any Debt Securities of any series or any related
coupons 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 the Debt Securities of
such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee 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
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(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Debt Securities of such
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 5.8. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Debt Security or coupon shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium, if any) and
(subject to Section 3.7) interest on such Debt Security or payment of such
coupon on the respective Stated Maturity or Maturities expressed in such Debt
Security or coupon (or, in the case of redemption or repayment, on the
Redemption Date or the Repayment Date, as the case may be) 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 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceedings to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in Section 3.6, 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 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Debt Security or coupon 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.
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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 5.12. Control by Holders of Debt Securities.
The Holders of a majority in principal amount of the
Outstanding Debt Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Debt Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Responsible
Officers of the Trustee, determine that the proceedings so directed
would be unjustly prejudicial to the Holders of Debt Securities of such
series not joining in any such direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any series may on behalf of the Holders of
all the Debt Securities of any such series and any related coupons waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or in the payment of any
sinking fund or analogous obligation with respect to the Debt
Securities 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 Debt Security of such series or coupons
affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Debt Security or coupon by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion
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require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having a due regard to the
merits and good faith of the claims or defenses made by such party litigant, but
the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Debt
Securities of any series, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Debt Security or the payment of any coupons on or after the respective
Stated Maturity or Maturities expressed in such Debt Security or coupon (or, in
the case of redemption or repayment, on or after the Redemption Date or
Repayment Date, as the case may be).
SECTION 5.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
whenever 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 benefits 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 6.1. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided in 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. 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 6.2. Notice of Default.
If a default occurs hereunder with respect to Debt Securities
of any series and is not cured or waived, the Trustee shall transmit by mail to
all Holders of Debt Securities 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 5.1(4) with respect to
Debt Securities of such series no such notice to Holders shall be given until at
least 30 days
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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 Debt Securities of such series.
SECTION 6.3. Certain Rights of Trustee.
Except as otherwise provided in Section 6.1:
(a) the Trustee may conclusively 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, coupon or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its reasonable
selection and the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Debt Securities of such series or any related
coupons 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, coupon, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney, other than any such books or records containing
information as to the affairs of the customers of the Company or any of its
subsidiaries; provided that the Trustee may examine such books and records
relating to customers to the extent that such books and records contain
information as to any payments made to such customers in their capacity as
Holders of Debt Securities;
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(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; no Exchange Rate Agent, Global Exchange Agent, Depositary or Paying
Agent shall be deemed an agent of the Trustee and the Trustee shall not be
responsible for any act or omission by any of them;
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(i) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities and this Indenture; and
(j) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
SECTION 6.4. Not Responsible for Recitals or Issuance of Debt
Securities.
The recitals contained herein and in the Debt Securities,
except the Trustee's certificates of authentication, and in any coupons, and the
information in any registration statement, including all attachments thereto,
except information provided by the Trustee therein, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities of any series or any
coupons. The Trustee shall not be accountable for the use or application by the
Company of any Debt Securities or the proceeds thereof. The Trustee shall not be
responsible for and makes no representations to the Company's ability or
authority to issue Bearer Securities or the lawfulness thereof.
SECTION 6.5. May Hold Debt Securities or Coupons.
The Trustee, any Paying Agent, the Security Registrar or any
other agent of the Company or the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities and coupons, and,
subject to Sections 6.8 and 6.13, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Paying Agent, Security
Registrar or such agent.
SECTION 6.6. Money Held in Trust.
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
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Paying Agent shall be under any liability for interest on any money received by
it hereunder except as otherwise agreed in writing with the Company.
SECTION 6.7. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation
as shall be agreed between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any and all loss, liability, damage, claim or expense
including taxes (other than taxes based on the income of the Trustee)
incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of this trust or
performance of its duties hereunder, including the costs and expenses
of defending itself against any claim (whether asserted by the Company,
a Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section the Trustee shall have a claim prior to the Debt
Securities and any coupons 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 particular Debt Securities or any coupons.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(6) or Section
5.1(7), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 6.8. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent
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and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture.
SECTION 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a corporation that is eligible pursuant to the Trust Indenture Act to act as
such and organized and doing business under the laws of the United States, any
State thereof or the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, and subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 6.10. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 6.11.
(b) The Trustee may resign at any time with respect to the
Debt Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Debt Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Debt Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 with
respect to the Debt Securities of any series after written request
therefor by the Company or by any Holder who has been a bona fide
Holder of a Debt Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9
with respect to any series of Debt Securities 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 with respect
to any series of Debt Securities or a decree or order for relief by a
court having jurisdiction in the prem-
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ises shall have been entered in respect of the Trustee in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy,
insolvency or similar law; or a decree or order by a court having
jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or other similar official of the Trustee or of its
property or affairs, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation, winding up or liquidation, or
(4) the Trustee shall commence a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or similar law or
shall consent to the appointment of or taking possession by a receiver,
custodian, liquidator, assignee, trustee, sequestrator or other similar
official of the Trustee or its property or affairs, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due, or shall take
corporate action in furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to such series or (ii) subject to Section 5.14, any Holder
who has been a bona fide Holder of a Debt Security of any series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee for the Debt
Securities of such series and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting with respect to any series of Debt Securities, or if a
vacancy shall occur in the office of Trustee for any cause, with respect to the
Debt Securities or one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Debt
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Debt Securities of one or more or
all of such series and that at any time there shall be only one Trustee with
respect to the Debt Securities of any particular series) and shall comply with
the applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debt Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to the
Debt Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Debt Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Debt Security of such series for at least
six months may, subject to Section 5.14, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Debt Securities of such
series.
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(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Registered Securities, if any, of such series as
their names and addresses appear in the Security Register and, if Debt
Securities of such series are issuable as Bearer Securities, by publishing
notice of such event once in an Authorized Newspaper in each Place of Payment
located outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Debt Securities of such series and the
address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In the case of an appointment hereunder of a successor
Trustee with respect to all Debt Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In the case of the appointment hereunder of a successor
Trustee with respect to the Debt Securities of one or more (but not all) series,
the Company, the retiring Trustee upon payment of its charges and each successor
Trustee with respect to the Debt Securities of one or more series shall execute
and deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Debt Securities, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Debt
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in 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 and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates; but, on the request of the Company
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or any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Debt Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of 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 executing or filing of any paper or any further
act on the part of any of the parties hereto. In case any Debt Securities shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Debt Securities so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Debt Securities. In case any Debt Securities shall not have been authenticated
by such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 6.13. Preferential Collection of Claims Against
Company.
If and when the Trustee shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Company (or any other
obligor upon the Debt Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding collection of claims against the
Company (or any such other obligor).
SECTION 6.14. Authenticating Agent.
The Trustee shall upon Company request appoint one or more
authenticating agents (including, without limitation, the Company or any
Affiliate thereof) with respect to one or more series of Debt Securities which
shall be authorized on behalf of the Trustee in authenticating Debt Securities
of such series in connection with the issue, delivery, registration of transfer,
exchange, partial redemption or repayment of such Debt Securities. Wherever
reference is made in this Indenture to the authentication of Debt Securities by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication on behalf of the Trustee by an
authenticating agent and a certificate of authentication executed on behalf of
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the Trustee by an authenticating agent. Each authenticating agent must be
acceptable to the Company and must be a corporation organized and doing business
under the laws of the United States or of any State, having a combined capital
surplus of at least $50,000,000, authorized under such laws to do a trust
business and subject to supervision or examination by Federal or State
authorities or the equivalent foreign authority in the case of an authenticating
agent who is not organized and doing business under the laws of the United
States or of any State thereof or the District of Columbia.
Any corporation succeeding to all or substantially all the
corporate agency or the corporate trust business of an authenticating agent
shall continue to be an authenticating agent without the execution or filing of
any paper or any further act on the part of the Trustee or such authenticating
agent.
An authenticating agent may at any time resign with respect to
one or more series of Debt Securities 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 with respect to one or more series of Debt
Securities 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 an authenticating agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee promptly
may appoint a successor authenticating agent. Any successor authenticating agent
upon acceptance of its appointment hereunder shall become vested with all
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an authenticating agent herein. No successor authenticating
agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each authenticating agent from
time to time reasonable compensation for its services under this Section.
The provisions of Sections 1.4, 1.11, 3.6, 3.9, 6.3, 6.4 and
6.5 shall be applicable to any authenticating agent.
Pursuant to each appointment made under this Section, the Debt
Securities of each series covered by such appointment may have endorsed thereon,
in lieu of the Trustee's certificate of authentication, an alternate certificate
of authentication in substantially the following form:
This is one of the Debt Securities, of the series designated
herein, described in the within-mentioned Indenture.
CITIBANK, N.A.
By
----------------------------------------------------
As Authenticating Agent for the Trustee
By
----------------------------------------------------
Authorized Signatory
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the
Trustee with respect to Debt Securities of each series for which it acts as
Trustee:
(1) semi-annually, not more than 15 days after the Regular
Record Date in respect of the Debt Securities of such series or on May
15 and November 15 of each year with respect to each series of Debt
Securities for which there are no Regular Record Dates, a list, in such
form as the Trustee may reasonably require, of the names and addresses
of the Holders of Registered Securities as of such Regular Record Date
or May 1 or November 1, as the case may be, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
SECTION 7.2. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Registered
Securities contained in the most recent list furnished to the Trustee as
provided in Section 7.1 and the names and addresses of Holders of Registered
Securities received by the Trustee in its capacity as Paying Agent or Security
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 7.1 upon receipt of a new list so furnished. The Trustee
shall preserve for at least two years the names and addresses of Holders of
Bearer Securities filed with the Trustee by such Holders.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Debt Securities,
and the corresponding rights and privileges of the Trustee, shall be as provided
by the Trust Indenture Act.
(c) Every Holder of Debt Securities or coupons, by receiving
and holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee shall be held accountable by reason of any disclosure of
information as to the names and addresses of the Holders made pursuant to the
Trust Indenture Act.
SECTION 7.3. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with
the first May 15 after the first issuance of Debt Securities pursuant to this
Indenture and at any other time re-
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quired by the Trust Indenture Act, the Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture and such
other matters as may be required pursuant to the Trust Indenture Act in the
manner required by the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Debt Securities of such series are listed, with the Commission and
also with the Company. The Company will promptly notify the Trustee when any
series of Debt Securities are listed on any stock exchange or of any delisting
thereof.
SECTION 7.4. Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
time and in the manner pursuant to such Act; provided that such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission. Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, etc. Only on Certain
Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) the corporation 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
existing under the laws of the United States of America, any political
subdivision thereof or any State or the District of Columbia thereof
and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium,
if any) and interest (including all additional amounts, if any, payable
pursuant to Section 10.6) on all the Debt Securities and any related
coupons and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
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(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing;
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or
lease and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
met.
SECTION 8.2. Successor Corporation Substituted.
Upon any consolidation with or merger into any other
corporation, or any conveyance, transfer or lease of the properties and assets
of the Company substantially as an entirety in accordance with Section 8.1, 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 had been named as
the Company herein, and thereafter, except in the case of a lease, the Company
(which term for this purpose shall mean the Person named as the "Company" in the
first paragraph of this instrument or any successor corporation which shall
theretofore have become such in the manner presented in this Article) shall be
relieved of all obligations and covenants under this Indenture and the Debt
Securities and coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures without Consent of
Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company, and the assumption by such successor of the covenants of the
Company herein and in the Debt Securities contained; or
(2) to add to the covenants of the Company, for the benefit of
the Holders of all or any series of Debt Securities or coupons (and if
such covenants are to be for the benefit of less than all series of
Debt Securities or coupons, stating that such covenants are expressly
being included solely for the benefit of such series), to convey,
transfer, assign, mortgage or pledge any property to or with the
Trustee, or to surrender any right or power herein conferred upon the
Company; or
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(3) to add any additional Events of Default (and if such
Events of Default are to be applicable to less than all series of Debt
Securities, stating that such Events of Default are expressly being
included solely to be applicable to such series); or
(4) to add to, change or eliminate any of the provisions of
this Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the payment of
principal (or premium, if any) on Registered Securities or of principal
(or premium, if any) or any interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities of
other authorized denominations or to permit or facilitate the issuance
of Debt Securities in uncertificated form, provided any such action
shall not adversely affect the interests of the Holders of Debt
Securities of any series or any related coupons in any material
respect; or
(5) to add to, change or eliminate any of the provisions of
this Indenture, provided that any such addition, change or elimination
(a) shall become effective only when there is no Debt Security
Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such
provisions or (b) shall not apply to any Debt Security Outstanding; or
(6) to secure the Debt Securities;
(7) to establish the form or terms of Debt Securities of any
series as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11(b); 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 which shall not be
inconsistent with any provision of this Indenture, provided such other
provisions shall not adversely affect the interests of the Holders of
Debt Securities of any series or any related coupons in any material
respect; or
(10) to add to or change or eliminate any provision of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act, provided such action shall not
adversely affect the interest of Holders of Debt Securities of any
series or any appurtenant coupons in any material respect.
SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture, by Act
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of said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders under this Indenture of
such Debt Securities of such series and any related coupons; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Debt Security or coupon affected thereby,
(1) change the Stated Maturity of the principal or any
installment of principal of, or any installment of interest on, any
Debt Security, or reduce the principal amount thereof or the interest
thereon or any premium payable upon redemption or repayment thereof, or
change any obligation of the Company to pay additional amounts pursuant
to Section 10.6 (except as contemplated by Section 8.1(1) and permitted
by Section 9.1(1)), or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.2, or change any Place of Payment, or the coin or currency in which
any Debt Security or the interest thereon or any coupon 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 or repayment, on or after the Redemption Date or Repayment
Date, as the case may be), or modify the provisions of this Indenture
with respect to the subordination of the Debt Securities of any series
in a manner adverse to the Holder, or
(2) reduce the percentage in principal amount of the
Outstanding Debt Securities of any series, the consent of whose Holders
is required for any 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 reduce the
requirements of Section 14.4 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 5.13
or Section 10.8, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Debt
Security affected thereby; provided, however, that this clause shall
not be deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant changes in
this Section and Section 10.8, or the deletion of this proviso, in
accordance with the requirements of Section 6.11(b) and 9.1(7), or
(4) adversely affect the right to repayment, if any, of Debt
Securities of any series at the option of the Holders thereof.
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 Debt Securities, or
which modifies the rights of the Holders of Debt Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Debt Securities of any other
series.
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It shall not be necessary for any Act of Holders of the Debt
Securities 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 9.3. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 6.1) shall be fully protected in relying
upon, an Opinion of Counsel and an Officers' Certificate 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 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Debt Securities theretofore or thereafter authenticated and
delivered hereunder and of any coupons appertaining thereto shall be bound
thereby.
SECTION 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6. Reference in Debt Securities to Supplemental
Indentures.
Debt Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Debt Securities of any series and any
appurtenant coupons so modified as to conform, in the opinion of the Trustee and
the Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debt Securities of such series and any appurtenant
coupons.
ARTICLE TEN
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Debt Securities and any appurtenant coupons that it will duly and
punctually pay the principal of (and pre-
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mium, if any) and interest on the Debt Securities and any appurtenant coupons in
accordance with the terms of the Debt Securities, any appurtenant coupons and
this Indenture. Any interest due on Bearer Securities on or before Maturity,
other than additional amounts, if any, payable as provided in Section 10.6 in
respect of principal of (or premium, if any, on) such a Debt Security, shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
SECTION 10.2. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Debt Securities an office or agency where Debt Securities (but, except
as otherwise provided below, unless such Place of Payment is located outside the
United States, not Bearer Securities) may be presented or surrendered for
payment, where Debt Securities may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
the Debt Securities and this Indenture may be served. If Debt Securities of a
series are issuable as Bearer Securities, the Company will maintain, subject to
any laws or regulations applicable thereto, an office or agency in a Place of
Payment for such series which is located outside the United States where Debt
Securities of such series and the related coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Debt Securities of such series pursuant to Section 10.6); provided, however,
that if the Debt Securities of such series are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange
or any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent in London or
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Debt Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee of this
location, and any change in the location, of any 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 or demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee its agent to receive all presentations, surrenders, notices and demands,
except that Bearer Securities of that series and the related coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Bearer Securities of that series pursuant to Section 10.6) at
the place specified for the purpose pursuant to Section 3.1(5).
No payment of principal of, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; provided,
however, payment of principal of and any premium and interest denominated in
Dollars (including additional amounts payable in respect thereof) on any Bearer
Security may be made at an office or agency of, and designated by, the Company
located in the United States if (but only if) payment of the full amount of such
principal, premium, interest or additional amounts in Dollars at all offices
outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions and the Trustee receives an Opinion of
Counsel that such
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payment within the United States is legal. Unless otherwise provided as
contemplated by Section 3.1 with respect to any series of Debt Securities, at
the option of the Holder of any Bearer Security or related coupon, payment may
be made by check in the currency designated for such payment pursuant to the
terms of such Bearer Security presented or mailed to an address outside the
United States or by transfer to an account in such currency maintained by the
payee with a bank located outside the United States.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of such Place of Payment) where the
Debt Securities of one or more series and any appurtenant coupons (subject to
the preceding paragraph) may be presented or surrendered for any or all such
purposes, and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of
Payment for any series of Debt Securities for such purposes. The Company will
give prompt written notice to the Trustee of any such designation and any change
in the location of any such other office or agency.
SECTION 10.3. Money for Debt Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Debt Securities, it will, on or before each due
date of the principal of (and premium, if any) or interest on any of the Debt
Securities of such series and any appurtenant coupons, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with
respect to any series of Debt Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Debt Securities
of such series and any appurtenant coupons, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent with respect to any
series of Debt Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Debt Securities of such series
and any appurtenant coupons in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Debt Securities of such series or any
appurtenant coupons) in the making of any
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payment of principal of (and premium, if any) or interest on the Debt
Securities of such series or any appurtenant coupons; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of terminating
its obligations under this Indenture with respect to Debt Securities of any
series 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 principal and interest received on the Eligible
Instruments deposited with the Trustee or any money deposited with the Trustee
or any Paying Agent, or then held by the Company, in trust for the payment of
the principal of (and premium, if any) or interest on any Debt Security of any
series or any appurtenant coupons or any money on deposit with the Trustee or
any Paying Agent representing amounts deducted from the Redemption Price or
Repayment Price with respect to unmatured coupons not presented upon redemption
or exercise of the Holder's option for repayment pursuant to Section 11.6 or
13.3 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 Debt Security or any coupon appertaining thereto
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 (including the principal and interest received on
Eligible Instruments deposited with the Trustee), and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized
Newspaper of general circulation in the Borough of Manhattan, The City of New
York, and each Place of Payment or mailed to each such Holder, or both, 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 10.4. Purchase of Debt Securities by Company or
Subsidiary.
If and so long as the Debt Securities of a series are listed
on The Stock Exchange of the United Kingdom and the Republic of Ireland and such
stock exchange shall so require, the Company will not, and will not permit any
of its Subsidiaries to, purchase any Debt Securities of that series by private
treaty at a price (exclusive of expenses and accrued interest) which exceeds
120% of the mean of the nominal quotations of the Debt Securities of that series
as shown in The Stock Exchange Daily Official List for the last trading day
preceding the date of purchase.
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SECTION 10.5. 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
existence, rights (charter and statutory) and 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 and is not reasonably likely to be disadvantageous in any
material respect to the Holders.
SECTION 10.6. Restrictions Upon Sale or Issuance of Capital
Stock of Certain Subsidiary Banks.
The Company will not, and will not permit any Subsidiary to,
sell, assign, pledge, transfer or otherwise dispose of, or permit any Principal
Subsidiary Bank to issue except to the Corporation, any shares of Capital Stock
of, or any securities convertible into Capital Stock of, any Principal
Subsidiary Bank or any shares of Capital Stock of any Subsidiary owning,
directly or indirectly, in whole or in part, Capital Stock of any Principal
Subsidiary Bank, except:
(1) any sale, assignment, pledge, transfer or other
disposition or issuance made, in the minimum amount required by law, to
any person for the purpose of the qualification of such person to serve
as a director;
(2) any sale, assignment, pledge, transfer or other
disposition or issuance for fair market value (as determined by the
Board of Directors of the Company, such determination being evidenced
by a resolution of the Board of Directors), if, after giving effect to
such disposition and to the issuance of any shares issuable upon
conversion or exchange of securities convertible or exchangeable into
Capital Stock, the Company would own directly or indirectly through
other Subsidiaries not less than 80% of the shares of each class of
Capital Stock of such Principal Subsidiary Bank;
(3) any sale, assignment, pledge, transfer or other
disposition or issuance made in compliance with an order or direction
of a court or regulatory authority of competent jurisdiction; or
(4) any sale by any Principal Subsidiary Bank of additional
shares of Capital Stock to its stockholders at any price, so long as
(a) prior to such sale the Company owns, directly or indirectly, shares
of the same class and (b) immediately after such sale, the percentage
of the shares of such class of Capital Stock owned by the Company shall
not have been reduced.
Notwithstanding the foregoing, any Principal Subsidiary Bank
may be merged into or consolidated with another banking institution organized
under the laws of the United States, any State thereof or the District of
Columbia, if after giving effect to such merger or consolidation, the
Corporation or any Wholly-Owned Subsidiary owns at least 80% of the Capital
Stock of such other banking institution then issued and outstanding free and
clear of any security
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interest and if, immediately after giving effect thereto, no default or Event of
Default shall have happened and be continuing.
SECTION 10.7. Payment of Additional Amounts.
If the Debt Securities of a series provide for the payment of
additional amounts, the Company will pay to the Holder of any Debt Security of
any series or any coupon appertaining thereto additional amounts upon the terms
and subject to the conditions provided therein. Whenever in this Indenture there
is mentioned, in any context, the payment of the principal of (or premium, if
any) or interest on, or in respect of, any Debt Security of any series or any
related coupon or the net proceeds received on the sale or exchange of any Debt
Security of any series, such mention shall be deemed to include mention of the
payment of additional amounts provided for in the terms of such Debt Securities
and this Section to the extent that, in such context, additional amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if applicable)
in any provisions hereof shall not be construed as excluding additional amounts
in those provisions hereof where such express mention is not made.
If the Debt Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Debt Securities (or if the Debt Securities of
that series will not bear interest prior to Maturity, the first day on which a
payment of principal (and premium, if any) is made), and at least 10 days prior
to each date of payment of principal (and premium, if any) or interest if there
has been any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company will furnish the Trustee and the Company's
principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of (and premium, if any) or interest on
the Debt Securities of that series shall be made to Holders of Debt Securities
of that series or the related coupons who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Debt Securities of that series. If any such withholding
shall be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of Debt
Securities or coupons and the Company will pay to the Trustee or such Paying
Agent the additional amounts, if any, required by the terms of such Debt
Securities and the first paragraph of this Section. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section.
SECTION 10.8. Officers' Certificate as to Default.
The Company will deliver to the Trustee, on or before a date
not more than four months after the end of each fiscal year of the Company
ending after the date hereof, an Officers' Certificate, one of the signers of
which shall be the principal executive, principal financial or principal
accounting officer of the Company, stating whether or not to the best knowledge
of the
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signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture, all without
regard to periods of grace or notice requirements and, if the Company shall be
in default, specifying all such defaults and the nature thereof of which they
may have knowledge.
The Company shall file with the Trustee written notice of the
occurrence of any default or Event of Default within 5 days after the occurrence
thereof.
SECTION 10.9. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Section 10.5 with respect to the Debt
Securities of any series if, before the time for such compliance the Holders of
at least a majority in principal amount of the Debt Securities at the time
Outstanding shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
SECTION 10.10. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of
each calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding Debt
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
SECTION 11.1. Applicability of Article.
Debt Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 3.1 for Debt
Securities of any series) in accordance with this Article.
SECTION 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debt Securities
shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company of the Debt Securities of any series, the Company shall,
at least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount and the tenor and terms of the Debt
Securities of any series to be redeemed. In the case of any redemption of Debt
Securities prior to the expira-
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tion of any restriction on such redemption provided in the terms of such Debt
Securities or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such restriction.
SECTION 11.3. Selection by Trustee of Debt Securities to be
Redeemed.
Except as otherwise specified as contemplated by Section 3.1
for Debt Securities of any series, if less than all the Debt Securities of any
series with like tenor and terms are to be redeemed, the particular Debt
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Debt Securities of such
series with like tenor and terms not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which may provide for
the selection for redemption of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral multiple thereof
which is also an authorized denomination) of the principal amount of Registered
Securities or Bearer Securities (if issued in more than one authorized
denomination) of such series of a denomination larger than the minimum
authorized denomination for Debt Securities of such series.
The Trustee shall promptly notify the Company in writing of
the Debt Securities selected for redemption and, in the case of any Debt
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Debt Securities
shall relate, in the case of any Debt Security redeemed or to be redeemed only
in part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed.
SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 1.6 not less than 30 nor more than 60 days prior to the Redemption Date,
to each Holder of Debt Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Debt Securities to
be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security to be redeemed, and
that interest thereon shall cease to accrue on and after said date,
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(5) the Place or Places of Payment where such Debt Securities,
together in the case of Bearer Securities with all coupons, if any,
appertaining thereto maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price,
(6) that Bearer Securities may be surrendered for payment only
at such place or places which are outside the United States, except as
otherwise provided in Section 10.2,
(7) that the redemption is for a sinking fund, if such is the
case, and
(8) the CUSIP number, if any.
A notice of redemption published as contemplated by Section
1.6 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Debt Securities to be redeemed at the
election of the Company shall be given by the Company, or, at the Company's
request, by the Trustee in the name and at the expense of the Company, and shall
be irrevocable.
SECTION 11.5. Deposit of Redemption Price.
On or prior to 10:00 a.m., New York City time on any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, aggregate and hold
in trust as provided in Section 10.3) an amount of money and/or, to the extent
the Debt Securities to be redeemed are denominated and payable in Dollars only,
Eligible Instruments the payments of principal and interest on which when due
(and without reinvestment and providing no tax liability will be imposed upon
the Trustee or the Holders of the Debt Securities to be redeemed) will provide
money on or prior to the Redemption Date in such amounts as will (together with
any money irrevocably deposited in trust with the Trustee, without investment)
be sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Debt Securities
or portions thereof which are to be redeemed on that date; provided, however,
that deposits with respect to Bearer Securities shall be made with a Paying
Agent or Paying Agents located outside the United States except as otherwise
provided in Section 10.2, unless otherwise specified as contemplated by Section
3.1.
SECTION 11.6. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debt
Securities 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 Debt Securities shall cease to bear interest and the coupons for
such interest appertaining to any Bearer Securities so to be redeemed, except to
the extent provided below, shall be void. Upon surrender of any such Debt
Security for redemption in accordance with said notice, such Debt Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemp-
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tion Date shall be payable only upon presentation and surrender of coupons for
such interest (at an office or agency located outside the United States except
as otherwise provided in Section 10.2), and provided further, that installments
of interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Debt Securities, or one
or more Predecessor Securities, registered as such on the relevant Record Dates
according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only upon presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 10.2.
If any Debt Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
SECTION 11.7. Debt Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part
shall be surrendered at a Place of Payment therefor (with, if the Company, the
Security Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Debt Security without
service charge, a new Registered Security or Registered Securities of the same
series and of like tenor and terms, of any authorized denominations as requested
by such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Debt Securities of a series except as
otherwise specified as contemplated by Section 3.1 for Debt Securities of such
series.
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The minimum amount of any sinking fund payment provided for by
the terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the term of Debt Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Debt Securities
of any series, the amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
SECTION 12.2. Satisfaction of Sinking Fund Payments with Debt
Securities.
The Company (1) may deliver Outstanding Debt Securities of a
series (other than any previously called for redemption), together in the case
of any Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) may apply as a credit Debt Securities of a series which have
been redeemed either at the election of the Company pursuant to the terms of
such Debt Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Debt Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Debt Securities of such series required to be made pursuant to the terms of such
Debt Securities as provided for by the terms of such series; provided that such
Debt Securities have not been previously so credited. Such Debt Securities shall
be received and credited for such purpose by the Trustee at the Redemption Price
specified in such Debt Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Debt Securities in lieu
of cash payments pursuant to this Section 12.2, the principal amount of Debt
Securities to be redeemed in order to exhaust the aforesaid cash payment shall
be less than $100,000, the Trustee need not call Debt Securities for redemption,
except upon Company Request, and such cash payment shall be held by the Trustee
or a Paying Agent and applied to the next succeeding sinking fund payment,
provided, however, that the Trustee or such Paying Agent shall at the request of
the Company from time to time pay over and deliver to the Company any cash
payment so being held by the Trustee or such Paying Agent upon delivery by the
Company to the Trustee of Debt Securities purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
SECTION 12.3. Redemption of Debt Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Debt Securities (unless a shorter period shall be satisfactory
to the Trustee), the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash, the portion thereof, if any, which
is to be satisfied by crediting Debt Securities of that series pursuant to
Section 12.2 and the basis for any such credit and, prior to or concurrently
with the delivery of such Officers' Certificate, will also deliver to the
Trustee any Debt Securities to be so credited and not theretofore delivered to
the Trustee. Not less than 30 days (unless a shorter period shall be
satisfactory to the Trustee) before each such sinking fund payment date the
Trustee shall select the Debt Securities to be redeemed upon such
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sinking fund payment date in the manner specified in Section 11.3 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 11.4. Such notice having been
duly given, the redemption of such Debt Securities shall be made upon the terms
and in the manner stated in Sections 11.5, 11.6 and 11.7.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 13.1. Applicability of Article.
Debt Securities of any series which are repayable at the
option of the Holders thereof before their Stated Maturity shall be repaid in
accordance with their terms and (except as otherwise specified pursuant to
Section 3.1 for Debt Securities of such series) in accordance with this Article.
SECTION 13.2. Repayment of Debt Securities.
Each Debt Security which is subject to repayment in whole or
in part at the option of the Holder thereof on a Repayment Date shall be repaid
at the applicable Repayment Price together with interest accrued to such
Repayment Date as specified pursuant to Section 3.1.
SECTION 13.3. Exercise of Option; Notice.
Each Holder desiring to exercise such Holder's option for
repayment shall, as conditions to such repayment, surrender the Debt Security to
be repaid in whole or in part together with written notice of the exercise of
such option at any office or agency of the Company in a Place of Payment, not
less than 30 nor more than 45 days prior to the Repayment Date; provided,
however, that surrender of Bearer Securities together with written notice of
exercise of such option shall be made at an office or agency located outside the
United States except as otherwise provided in Section 10.2. Such notice, which
shall be irrevocable, shall specify the principal amount of such Debt Security
to be repaid, which shall be equal to the minimum authorized denomination for
such Debt Security or an integral multiple thereof, and shall identify the Debt
Security to be repaid and, in the case of a partial repayment of the Debt
Security, shall specify the denomination or denominations of the Debt Security
or Debt Securities of the same series to be issued to the Holder for the portion
of the principal of the Debt Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Repayment Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled
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to receive the amount so deducted without interest thereon; provided, however,
that interest represented by coupons shall be payable only at an office or
agency located outside the United States except as otherwise provided in Section
10.2.
The Company shall execute and the Trustee shall authenticate
and deliver without service charge to the Holder of any Registered Security so
surrendered a new Registered Security or Securities of the same series, of any
authorized denomination specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Registered
Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate
and deliver without service charge to the Holder of any Bearer Security so
surrendered a new Registered Security or Securities or new Bearer Security or
Securities (and all appurtenant unmatured coupons and matured coupons in
default) or any combination thereof of the same series of any authorized
denomination or denominations specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Debt Security so
surrendered which is not to be paid; provided, however, that the issuance of a
Registered Security therefor shall be subject to applicable laws and
regulations, including provisions of the United States Federal income tax laws
and regulations in effect at the time of the exchange; neither the Company, the
Trustee nor the Security Registrar shall issue Registered Securities for Bearer
Securities if it has received an Opinion of Counsel that as a result of such
issuance the Company would suffer adverse consequences under the United States
Federal income tax laws then in effect and the Company has delivered to the
Trustee a Company Order directing the Trustee not to make such issuances
thereafter unless and until the Trustee receives a subsequent Company Order to
the contrary. The Company shall deliver copies of such Company Order to the
Security Registrar.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the repayment of Debt Securities
shall relate, in the case of any Debt Security repaid or to be repaid only in
part, to the portion of the principal of such Debt Security which has been or is
to be repaid.
SECTION 13.4. Election of Repayment by Remarketing Entities.
The Company may elect, with respect to Debt Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity, at any time prior to any Repayment Date to designate one or
more Remarketing Entities to purchase, at a price equal to the Repayment Price,
Debt Securities of such series from the Holders thereof who give notice and
surrender their Debt Securities in accordance with Section 13.3.
SECTION 13.5. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been
given and the Debt Securities so to be repaid having been surrendered as
aforesaid, such Debt Securities shall, unless purchased in accordance with
Section 13.4, on the Repayment Date become due and payable at the price therein
specified and from and after the Repayment Date such Debt Securities shall cease
to bear interest and shall be paid on the Repayment Date, and the coupons for
such interest
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appertaining to Bearer Securities so to be repaid, except to the extent provided
above, shall be void, unless the Company shall default in the payment of such
price in which case the Company shall continue to be obligated for the principal
amount of such Debt Securities and shall be obligated to pay interest on such
principal amount at the rate borne by such Debt Securities from time to time
until payment in full of such principal amount.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 14.1. Purposes for Which Meetings May Be Called.
If Debt Securities of a series are issuable in whole or in
part as Bearer Securities, a meeting of Holders of Debt Securities of such
series may be called at any time and from time to time pursuant to this Article
to make, give or take any request, demand, authorization, direction, notice,
consent, waiver or other Act provided by this Indenture to be made, given or
taken by Holders of Debt Securities of such series.
SECTION 14.2. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Debt Securities of any series issuable as Bearer Securities for any purpose
specified in Section 14.1, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, or in London as the Trustee shall
determine. Notice of every meeting of Holders of Debt Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 1.6, not less than 21 no more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Debt Securities of any series shall have requested the Trustee to
call a meeting of the Holders of Debt Securities of such series for any purpose
specified in Section 14.1, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Debt Securities
of such series in the amount above specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, The City of New York, or in
London for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
SECTION 14.3. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Debt
Securities of any series, a Person shall be (1) a Holder of one or more
Outstanding Debt Securities of such series, or (2) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Debt Securities of such series by such Holder or Holders. The only
Persons who
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shall be entitled to be present or to speak at any meeting of Holders of Debt
Securities of any series shall be the Persons entitled to vote at such meeting
and their counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 14.4. Quorum; Action.
The Persons entitled to vote a majority in principal amount of
the Outstanding Debt Securities of a series shall constitute a quorum for a
meeting of Holders of Debt Securities of such series; provided, however, that if
any action is to be taken at such meeting with respect to a consent or waiver
which this Indenture expressly provides may be given by the Holders of not less
than a majority in principal amount of the Outstanding Debt Securities of a
series, the Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of such series shall constitute a quorum. In the
absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Debt
Securities of such series, be dissolved. In the absence of a quorum in any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairperson of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairperson of the meeting prior to the adjournment of such
adjourned meeting. Notice of this reconvening of any adjourned meeting shall be
given as provided in Section 14.2(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Debt Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 9.2, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the affirmative vote of
the Holders of majority in principal amount of the Outstanding Debt Securities
of that series, provided however, that, except as limited by the proviso to
Section 9.2, any resolution with respect to any consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
majority in principal amount of the Outstanding Debt Securities of a series may
be adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Debt Securities of that series;
and provided, further, that, except as limited by the proviso to Section 9.2,
any resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other Act which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Debt Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Debt
Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Debt Securities of any series duly held in accordance with this
Section shall be binding on all the Holders
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of Debt Securities of such series and the related coupons, whether or not
present or represented at the meeting.
SECTION 14.5. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Debt Securities of such series in regard to proof of
the holding of Debt Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Debt Securities shall be proved in the manner
specified in Section 1.4 and the appointment of any proxy shall be proved in the
manner specified in Section 1.4 or, in the case of Bearer Securities, by having
the signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 1.4 to certify to the
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 1.4 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by Holders of Debt Securities as provided in Section 14.2(b),
in which case the Company or the Holders of Debt Securities of the series
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairperson. A permanent chairperson and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Debt Securities of such series represented
at the meeting.
(c) At any meeting each Holder of a Debt Security of such
series or proxy shall be entitled to one vote for each $1,000 principal amount
(or the equivalent in Euros, any other composite currency or a Foreign Currency)
of Debt Securities of such series held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any Debt
Security challenged as not Outstanding and ruled by the chairperson of the
meeting not to be Outstanding. The chairperson of the meeting shall have no
right to vote, except as a Holder of a Debt Security of such series or proxy.
(d) Any meeting of Holders of Debt Securities of any series
duly called pursuant to Section 14.2 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in principal
amount of the Outstanding Debt Securities of such series represented at the
meeting; and the meeting may be held as so adjourned without further notice.
SECTION 14.6. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Debt Securities of any series shall be by written ballots on which
shall be subscribed the signatures of the Holders of Debt Securities of such
series or of their representatives by proxy and the principal
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amounts and serial numbers of the Outstanding Debt Securities of such series
held or represented by them. The permanent chairperson of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in triplicate of all votes cast at
the meeting. A record, at least in triplicate, of the proceedings of each
meeting of Holders of Debt Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 14.2 and, if applicable, Section 14.1. Each copy shall be
signed and verified by the affidavits of the permanent chairperson and secretary
of the meeting and one such copy shall be delivered to the Company, and another
to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE FIFTEEN
DEFEASANCE
SECTION 15.1. Termination of Company's Obligations.
If this Section 15.1 is specified, as contemplated by Section
3.1, to be applicable to any series of Debt Securities and if the Company
deposits irrevocably in trust with the Trustee money and/or, to the extent such
Debt Securities are denominated and payable in Dollars only, Eligible
Instruments the payments of principal and interest on which when due (and
without reinvestment and providing no tax liability will be imposed upon the
Trustee or the Holders of such Debt Securities) will provide money in such
amounts as will (together with any money irrevocably deposited in trust with the
Trustee, without investment) be sufficient to pay the principal of (and premium,
if any) and any installment of principal of (and premium, if any) or interest
when due on the Debt Securities of such series and any coupons appertaining
thereto and any mandatory sinking fund, repayment or analogous payments thereon
on the scheduled due dates therefor at the Stated Maturity thereof, the
Company's obligations under Section 10.5 and any other covenant determined
pursuant to Section 3.1 to be subject to this Section shall terminate with
respect to the Debt Securities of the series for which such deposit was made;
provided, however, that (i) no Event of Default with respect to the Debt
Securities of such series under Section 5.1(6) or 5.1(7) or event that with
notice or lapse of time or both would constitute such an Event of Default shall
have occurred and be continuing on such date, (ii) such deposit will not result
in a breach of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which it is bound,
and (iii) such termination shall not relieve the Company of its obligations
under the Debt Securities of such series and this Indenture to pay when due the
principal of (and premium, if any) and interest and additional amounts on such
Debt Securities and any coupons appertaining thereto if such Debt Securities or
coupons are not paid (or payment is not provided for) when due from the money
and Eligible Instruments (and the proceeds thereof) so deposited.
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It shall be a condition to the deposit of cash and/or Eligible
Instruments and the termination of the Company's obligations pursuant to the
provisions of this Section with respect to the Debt Securities of any series
under Section 10.5 and any other covenant determined pursuant to Section 3.1 to
be subject to this Section that the Company deliver to the Trustee (i) an
Opinion of Counsel to the effect that: (a) Holders of Debt Securities of such
series and any coupons appertaining thereto will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit and termination
and (b) such Holders (and future Holders) will be subject to tax in the same
amount, manner and timing as if such deposit and termination has not occurred,
(ii) an Officers' Certificate to the effect that under the laws in effect on the
date such money and/or Eligible Instruments are deposited with the Trustee, the
amount thereof will be sufficient, after payment of all Federal, state and local
taxes in respect thereof payable by the Trustee, to pay principal (and premium,
if any) and interest when due on the Debt Securities of such series and any
coupons appertaining thereto; and (iii) an Officers' Certificate and an Opinion
of Counsel, each stating that all conditions precedent herein provided for
relating to the defeasance contemplated in this Section have been complied with.
It shall be an additional condition to the deposit of cash
and/or Eligible Instruments and the termination of the Company's obligations
pursuant to the provisions of this Section under Section 10.5 and any other
covenant determined pursuant to Section 3.1 to be subject to this Section, with
respect to the Debt Securities of any series then listed on the New York Stock
Exchange, that the Company deliver an Opinion of Counsel that the Debt
Securities of such series will not be delisted from the New York Stock Exchange
as a result of such deposit and termination.
After a deposit as provided herein, the Trustee shall, upon
Company Request, acknowledge in writing the discharge of the Company's
obligations pursuant to the provisions of this Section with respect to the Debt
Securities of such series under Section 10.5 and any other covenant determined
pursuant to Section 3.1 to be subject to this Section.
SECTION 15.2. Repayment to Company.
The Trustee and any Paying Agent shall promptly pay to the
Company upon Company Request any money or Eligible Instruments not required for
the payment of the principal of (and premium, if any) and interest on the Debt
Securities of any series and any related coupons for which money or Eligible
Instruments have been deposited pursuant to Section 15.1 held by them at any
time.
The Trustee and any Paying Agent shall promptly pay to the
Company upon Company Request any money held by them for the payment of principal
(and premium, if any) and interest that remains unclaimed for two years after
the Maturity of the Debt Securities for which a deposit has been made pursuant
to Section 15.1. After such payment to the Company, the Holders of the Debt
Securities of such series and any related coupons shall thereafter, as unsecured
general creditors, look only to the Company for the payment thereof.
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SECTION 15.3. Indemnity for Eligible Instruments.
The Company shall pay and shall indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the deposited
Eligible Instruments or the principal or interest received on such Eligible
Instruments.
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.
FIRSTAR CORPORATION
By /s/ Jennie P. Carlson
--------------------------------------
Its Senior Vice President, General
Counsel, and Secretary
----------------------------------
[CORPORATE SEAL]
Attest:
/s/ James R. Barresi
- -----------------------------
Assistant Secretary
CITIBANK, N.A.
AS TRUSTEE
By /s/ Wafaa Orfy
--------------------------------------
Name: Wafaa Orfy
Title: Assistant Vice President
[CORPORATE SEAL]
Attest:
/s/ Nancy Forte
- -----------------------------
Authorized Signatory
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STATE OF WISCONSIN )
) SS.
COUNTY OF ________ )
On the ____ day of _________, ____, before me personally came
________________, to me known, who, being duly sworn, did depose and say that he
resides at _______________________ ___________; that he is a
_____________________ of Firstar Corporation, a corporation described in and
which executed the above instrument; that he knows the seal of said corporation;
that it was so affixed pursuant to the authority of the Board of Directors of
said corporation; and that he signed his name thereto pursuant to like
authority.
-----------------------------------
Notary Public
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STATE OF NEW YORK )
) SS.
COUNTY OF NEW YORK )
On the ____ day of _______, 1999, before me personally came
_______, to me known, who, being duly sworn, did depose and say that she resides
at New York, NY; that she is a ____________ of Citibank, N.A., a national
banking association described in and which executed the above instrument; that
she knows the seal of said corporation; that it was so affixed pursuant to the
authority of the Board of Directors of said corporation; and that she signed her
name thereto pursuant to like authority.
-----------------------------------
Notary Public
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EXHIBIT A-1
[Form of Certificate of Beneficial Ownership by a
Non-United States Person or by Certain Other Persons]
Certificate
FIRSTAR CORPORATION
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of June 22,
1999 (the "Indenture") between Firstar Corporation and Citibank, N.A., as
trustee (the "Trustee"), covering the above-captioned Debt Securities. This is
to certify that as of the date hereof, _________________ principal amount of
Debt Securities credited to you for our account (i) is owned by persons that are
not United States Persons, as defined below; (ii) is owned by United States
Persons that are (a) foreign branches of United States financial institutions
(as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States Persons who acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt Securities through
such United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution encloses herewith a
certificate in the form of Exhibit A-2 to the Indenture); or (iii) is owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), which United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) certify that they have not acquired the Debt Securities for purposes of
resale directly or indirectly to a United States Person or to a person within
the United States or its possessions.
[Insert if certificate does not relate to an interest
payment--We undertake to advise you by tested telex followed by written
confirmation if the above statement as to beneficial ownership is not correct on
the date of delivery of the above-captioned Debt Securities in bearer form as to
all of such Debt Securities with respect to such of said Debt Securities as then
appear in your books as being held for our account.] We understand that this
certificate is required in connection with United States tax laws. We
irrevocably authorize you to produce this certificate or a copy hereof to any
interested party in any administrative or legal proceedings with respect to the
matters covered by this certificate. "United States Person" shall mean a citizen
or resident of the United States of America (including the District of
Columbia), a corporation, partnership or other entity created or organized in or
under the laws of the United States or any political subdivision thereof or an
estate or trust that is subject to United States Federal income taxation
regardless of the source of its income.
[This certificate excepts and does not relate to __________
principal amount of Debt Securities credited to you for our account and to which
we are not now able to make the certification set forth above. We understand
that definitive Debt Securities cannot be delivered
-80-
<PAGE> 89
and interest cannot be paid until we are able to so certify with respect to such
principal amount of Debt Securities.]*
Dated:________________
[To be dated on or after
____________ (the date
determined as provided in the
Indenture)]
[Name of Person Entitled to Receive
Bearer Security]
----------------------------------------
(Authorized Signatory)
Name:
-----------------------------------
Title:
----------------------------------
* Delete if inappropriate
-81-
<PAGE> 90
EXHIBIT A-2
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
Certificate
FIRSTAR CORPORATION
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of June 22,
1999 (the "Indenture"), between Firstar Corporation and Citibank, N.A., as
trustee, relating to the offering of the above-captioned Debt Securities (the
"Debt Securities"). Unless herein defined, terms used herein have the same
meaning as given to them in the Indenture.
The undersigned represents that it is a branch located outside
the United States of a United States securities clearing organization, bank or
other financial institution (as defined in U.S. Treasury Regulation Section
1.165-12(c)(1)(v)) that holds customers' securities in the ordinary course of
its trade or business and agrees, and authorizes you to advise the issuer or the
issuer's agent, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United States Person or to a person within the United States or its
possessions. We undertake to advise you by tested telex followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Debt Securities in bearer
form.
We understand that this certificate is required in connection
with the United States tax laws. We irrevocably authorize you to produce this
certificate or a copy hereof to any interested party in any administrative or
legal proceedings with respect to the matters covered by this certificate.
Dated:_____________________
[To be dated on or after
________________ (the
date determined as provided
in the Indenture)]
[Name of Person Entitled to Receive
Bearer Security]
----------------------------------------
(Authorized Signatory)
Name:
-----------------------------------
Title:
----------------------------------
-82-
<PAGE> 91
EXHIBIT B
[Form of Certificate to be Given by Euroclear and Cedel S.A.
in Connection with the Exchange of All or a Portion of a
Temporary Global Security or to Obtain
Interest Prior to Exchange]
Certificate
FIRSTAR CORPORATION
[Insert title or sufficient description of Debt Securities
to be delivered]
We refer to that portion, _____________, of the Global
Security representing the above-captioned issue [which is herewith submitted to
be exchanged for definitive Debt Securities]* [for which we are seeking to
obtain payment of interest]* (the "Submitted Portion"). This is to certify,
pursuant to the Indenture dated as of June 22, 1999 (the "Indenture") between
Firstar Corporation and Citibank, N.A., as trustee (the "Trustee"), that we have
received in writing, by tested telex or by electronic transmission from member
organizations with respect to each of the persons appearing in our records as
being entitled to a beneficial interest in the Submitted Portion a Certificate
of Beneficial Ownership by a Non-United States Person or by Certain Other
Persons [and, in some cases, a Certificate of Status as a Foreign Branch of a
United States Financial Institution, authorizing us to inform the issuer or the
issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder]* substantially in the form of Exhibit A-1 [and A-2]* to
the Indenture.
We hereby request that you deliver to the office of
_______________ in ______________ definitive Bearer Securities in the
denominations on the attached Schedule A.
We further certify that as of the date hereof we have not
received any notification from any of the persons giving such certificates to
the effect that the statements made by them with respect to any part of the
Submitted Portion are no longer true and cannot be relied on as of the date
hereof.
Dated:
------------------
By:
-------------------------------------
* Delete if inappropriate.
-83-
<PAGE> 1
EXHIBIT 23.1
CONSENT OF PRICEWATERHOUSECOOPERS LLP
We hereby consent to the inclusion in this Registration Statement on Form S-3 of
Firstar Corporation of our report dated June 21, 1999 relating to the
consolidated financial statements of Firstar Corporation and subsidiaries, which
appears in Exhibit 99.1 to such Registration Statement. We also consent to the
reference to us under the heading "Experts" in such Registration Statement.
PRICEWATERHOUSECOOPERS LLP
Milwaukee, Wisconsin
June 22, 1999
<PAGE> 1
EXHIBIT 25.1
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) ____
------------------------
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. employer
identification no.)
<TABLE>
<S> <C>
399 Park Avenue, New York, New York 10043
(Address of principal executive office) (Zip Code)
</TABLE>
-----------------------
Firstar Corporation
(Exact name of obligor as specified in its charter)
<TABLE>
<CAPTION>
<S> <C>
Wisconsin 39-1940778
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
</TABLE>
<TABLE>
<S> <C>
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(Addresses of principal executive offices) (Zip Codes)
</TABLE>
-------------------------
Debt Securities
(Title of the indenture securities)
<PAGE> 2
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.
<TABLE>
<CAPTION>
Name Address
---- -------
<S> <C>
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, NY
33 Liberty Street
New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this Statement of
Eligibility.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as exhibits
hereto.
Exhibit 1 - Copy of Articles of Association of the Trustee, as
now in effect. (Exhibit 1 to T-1 to Registration Statement No.
2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to
commence business. (Exhibit 2 to T-1 to Registration Statement
No. 2-29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise
corporate trust powers. (Exhibit 3 to T-1 to Registration
Statement No. 2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit
4 to T-1 to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
<PAGE> 3
Exhibit 6 - The consent of the Trustee required by Section
321(b) of the Trust Indenture Act of 1939. (Exhibit 6 to T-1
to Registration Statement No. 33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of
Citibank, N.A. (as of March 31, 1999 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
------------------
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Citibank, N.A., 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 New York and State of New York, on the 23rd day
of June, 1999.
CITIBANK, N.A.
By /s/Nancy Forte
--------------
Nancy Forte
Trust Officer
<PAGE> 4
EXHIBIT 7
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
Citibank, N.A.
of New York in the State of New York, at the close of business on March 31,
1999, published in response to call made by Comptroller of the Currency, under
Title 12, United States Code, Section 161. Charter Number 1461 Comptroller of
the Currency Northeastern District.
ASSETS
Thousands
of dollars
Cash and balances due from de-
pository institutions:
Noninterest-bearing balances
and currency and coin $7,997,000
Interest-bearing balances 12,201,000
Held-to-maturity securities 0
Available-for-sale securities 36,050,000
Federal funds sold and
securities purchased under
agreements to resell 8,658,000
Loans and lease financing receivables:
Loans and Leases, net of un-
earned income 189,886,000
LESS: Allowance for loan
and lease losses 4,674,000
Loans and leases, net of un-
earned income, allowance,
and reserve $185,212,000
Trading assets 31,195,000
Premises and fixed assets (includ-
ing capitalized leases) 3,911,000
Other real estate owned 400,000
Investments in unconsolidated
subsidiaries and associated com-
panies 1,128,000
Customers liability to this bank
on acceptances outstanding 1,426,000
Intangible assets 3,560,000
Other assets 12,578,000
-----------
TOTAL ASSETS $304,316,000
------------
LIABILITIES
Deposits:
In domestic offices $40,444,000
Noninterest-
bearing $13,607,000
Interest-
bearing 26,837,000
<PAGE> 5
In foreign offices, Edge and
Agreement subsidiaries, and
IBFs 173,560,000
Noninterest-
bearing 11,287,000
Interest-
bearing 162,273,000
Federal funds purchased and
securities sold under agree-
ments to repurchase 6,977,000
Trading liabilities 25,422,000
Other borrowed money (includes
mortgage indebtedness and
obligations under capitalized
leases):
With a remaining maturity of one
year or less 11,454,000
With a remaining maturity of more
than one year through three years 1,569,000
With a remaining maturity of more
than three years 2,156,000
Banks liability on acceptances ex-
ecuted and outstanding 1,500,000
Subordinated notes and
debentures 6,600,000
Other liabilities 14,406,000
----------
TOTAL LIABILITIES $284,088,000
------------
EQUITY CAPITAL
Perpetual preferred stock
and related surplus 0
Common stock $751,000
Surplus 9,524,000
Undivided profits and capital re-
serves 10,651,000
Net unrealized holding gains (losses)
on available-for-sale securities 31,000
Accumulated net gains (losses)
on cash flow hedges 0
Cumulative foreign currency
translation adjustments (729,000)
-------
TOTAL EQUITY CAPITAL $20,228,000
-----------
TOTAL LIABILITIES, LIMITED-
LIFE PREFERRED STOCK, AND
EQUITY CAPITAL $304,316,000
------------
I, Roger W. Trupin, Controller of the above-
named bank do hereby declare that this
Report of Condition is true and correct to the
best of my knowledge and belief.
ROGER W. TRUPIN
CONTROLLER
We, the undersigned directors, attest to
the correctness of this Report of Condition.
<PAGE> 6
We declare that it has been examined by us,
and to the best of our knowledge and belief
has been prepared in conformance with the
instructions and is true and correct.
PAUL J. COLLINS
JOHN S. REED
WILLIAM R. RHODES
DIRECTORS
<PAGE> 1
EXHIBIT 99.1
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders of Firstar Corporation
In our opinion, the consolidated balance sheets of Firstar Corporation and
subsidiaries and the related consolidated statements of income, changes in
shareholders' equity and cash flows, set forth on pages 34 through 57 of
Exhibit 13 to Firstar Corporation's Annual Report on Form 10-K for the year
ended December 31, 1998, present fairly, in all material respects, the financial
position of Firstar Corporation and its subsidiaries at December 31, 1998 and
1997, and the results of their operations and their cash flows for each of the
three years in the period ended December 31, 1998, in conformity with generally
accepted accounting principles. These financial statements are the
responsibility of Firstar Corporation's management; our responsibility is to
express an opinion on these financial statements based on our audits. We
conducted our audits of these statements in accordance with generally accepted
auditing standards, which require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for the opinion expressed above.
PRICEWATERHOUSECOOPERS LLP
Milwaukee, Wisconsin
June 21, 1999
