<PAGE>
As filed with the Securities and Exchange Commission on March 10, 1994.
Registration No. 33-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------------------
FIRST SECURITY CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 6711 87-6118148
-------- ----------
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification No.)
incorporation or
organization)
79 South Main Street
Salt Lake City, Utah 84111
(801) 350-5706
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
----------------------
SCOTT C. ULBRICH
Executive Vice President and Chief Financial Officer
First Security Corporation
79 South Main Street
Salt Lake City, Utah 84111
(801) 246-5706
(Address, including zip code, and telephone number, including
area code, of agent for service)
----------------------
Copies To:
A. ROBERT THORUP, ESQ. STANLEY F. FARRAR, ESQ.
RAY, QUINNEY & NEBEKER SULLIVAN & CROMWELL
79 South Main Street 444 South Flower Street
Salt Lake City, Utah 84111 Los Angeles, California 90071
(801) 532-1500 (213) 955-8000
----------------------
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement as
determined by market conditions.
----------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
Title of Securities To Amount to Be Proposed Proposed Maximum Amount of
Be Registered Registered(1) Maximum Offering Aggregate Offering Price(3) Registration Fee
Price Per Unit(2)
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities $ (4), (6)
- --------------------------------------------------------------------------------------------------------------------
Preferred Stock (6)
- --------------------------------------------------------------------------------------------------------------------
Common Stock, par
value $1.25 (7) (5) (6)
- --------------------------------------------------------------------------------------------------------------------
Warrants to Purchase (5) (6)
Common Stock
- --------------------------------------------------------------------------------------------------------------------
Total $ 300,000.000 (2) $ 300,000,000 $ 103,449
====================================================================================================================
</TABLE>
/1/ Pursuant to Rule 457(o) under the Securities Act of 1933, which permits the
registration fee to be calculated on the basis of the maximum offering price of
all securities listed, the table does not specify by each class information as
to the amount to be registered, proposed maximum offering price per Unit or
proposed maximum offering price. There are being registered hereunder such
presently indeterminate principal amount or number of Debt Securities, shares of
Preferred Stock, shares of Common Stock, Common Stock Rights, and Warrants to
Purchase Common Stock as may be offered from time to time, with an aggregate
initial offering price not to exceed $300,000,000 (or the equivalent thereof in
one or more foreign or
<PAGE>
composite currencies, including the European Currency Unit), plus an
indeterminate number of shares as may be issued upon conversion of Debt
Securities or Preferred Stock for which no separate consideration will be
received.
/2/ The proposed maximum offering price per unit will be determined from time
to time by the Registrant in connection with the issuance by the Registrant of
the securities registered hereunder.
/3/ Estimated solely for the purpose of computing the registration fee.
/4/ Exclusive of accrued interest, if any.
/5/ The aggregate amount of Common Stock registered hereunder is limited to
that which is permissible under Rule 415(a)(4) under the Securities Act of
1933.
/6/ No separate consideration will be received for (i) Debt Securities,
Preferred Stock or Common Stock that are issued upon conversion of or in
exchange for Debt Securities or Preferred Stock or (ii) Common Stock to be
issued upon exercise of related Warrants to purchase Common Stock.
/7/ Each share of Common Stock registered hereby includes one Right to purchase
additional of the Company's securities, which Right will not be evidenced
separately from the Common Stock prior to the occurrence of certain events.
These Rights will be triggered by a future acquisition of a certain percentage
of the Company's outstanding Common Stock by a stockholder or group of
stockholders.
----------------------
The Registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to Section 8(a), may determine.
2
<PAGE>
SUBJECT TO COMPLETION, DATED March 10, 1994
PROSPECTUS
$ 300,000,000
[LOGO]
Debt Securities, Preferred Stock, Common Stock, and Warrants to Purchase
Common Stock
- --------------------------------------------------------------------------------
First Security Corporation (the "Company") may from time to time issue and offer
(a) its notes, debentures or other unsecured evidences of indebtedness in one or
more series ("Debt Securities"), which may be either senior ("Senior Debt
Securities") or subordinated ("Subordinated Debt Securities") in priority of
payment; (b) shares of one or more series of its Preferred Stock ("Preferred
Stock"); (c) shares of its Common Stock (par value $1.25) ("Common Stock"); and
(d) warrants to acquire Common Stock ("Common Stock Warrants") either directly
or in conversion or exchange for other securities. (When appropriate, all of
the foregoing types of securities are referred to herein as "the Securities".)
The Securities are not savings accounts, deposits or other obligations of any
bank or nonbank subsidiary of the Company and are not insured by the Federal
Deposit Insurance Corporation, Bank Insurance Fund or any other government
agency.
The Senior Debt Securities will rank equally with all other unsubordinated and
unsecured indebtedness of the Company. The Subordinated Debt Securities will be
subordinated to all of the Company's existing and future Senior Debt, as
defined. See "Description of Debt Securities."
The Company may offer the Securities up to an aggregate initial offering price
not to exceed US$300,000,000 or, as to Debt Securities, its equivalent based on
the applicable exchange rate at the time of offering in such foreign currencies
or units of two or more currencies thereof as may be designated by the Company
at the time of such an offering. Debt Securities or Preferred Stock of each
series will be offered on terms determined at the time of sale. When any of the
Securities is offered, a supplement to this Prospectus (the "Prospectus
Supplement") setting forth certain terms of the offered Securities will be
delivered together with this Prospectus. With regard to Debt Securities or
Preferred Stock in respect of which this Prospectus is being delivered, the
Prospectus Supplement will set forth, if applicable, the specific designation,
aggregate principal amount or redemption value, rate (or method of calculation)
or dividend and time of payment of any interest or dividend, maturity, initial
public offering price, place or places of payment of interest or dividends,
redemption terms and other terms of such Securities.
The Securities may be sold to underwriters for public offering pursuant to the
terms of offering fixed at the time of sale. Such underwriters may include J.P.
Morgan Securities Inc. and CS First Boston, or may be a group of underwriters
represented by such firms. In addition, any of the Securities may be sold to
the public by the Company directly or through agents or dealers. J.P. Morgan
Securities Inc. and CS First Boston may also act as agent. If any underwriters
or agents are involved in the sale of any Securities, their names and any
applicable fee, commission, purchase price or discount arrangements with them
will be set forth, or will be calculated from the information set forth, in a
Prospectus Supplement. See "Plan of Distribution."
This Prospectus may not be used to consummate sales of any securities
unless accompanied by a Prospectus Supplement.
-------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-------------------------
J.P. Morgan Securities Inc. CS First Boston
The date of this Prospectus is ___________, 1994.
1
<PAGE>
No dealer, salesman or other person has been authorized to give any
information or to make any representation not contained in this Prospectus or
any Prospectus Supplement in connection with the offer made by this Prospectus
and any such Prospectus Supplement and, if given or made, such information or
representation must not be relied upon as having been authorized by the Company
or any Underwriter. Neither this Prospectus nor any Prospectus Supplement
constitutes an offer to sell or a solicitation of an offer to buy any of the
securities offered hereby in any jurisdiction to any person to whom it is
unlawful to make such offer in such jurisdiction. Neither the delivery of this
Prospectus or any Prospectus Supplement nor any sale made hereunder shall, under
any circumstances, create an implication that the information herein is correct
as of any time subsequent to the date hereof or that there has been no change in
the affairs of the Company since such date.
FOR NORTH CAROLINA RESIDENTS:
THE COMMISSIONER OF INSURANCE OF THE STATE OF NORTH CAROLINA HAS NOT APPROVED OR
DISAPPROVED THIS OFFERING, NOR HAS THE COMMISSIONER PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements, and other information can be inspected and copies obtained at the
offices of the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549; at Public Reference Facilities at the Chicago Regional Office,
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661; and at the New York Regional Office, Seven World Trade Center,
13th Floor, New York, New York 10048. Copies of such material can be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates.
The Company has filed with the Commission in Washington, D.C. a
Registration Statement under the Securities Act of 1933 (the "Securities Act")
with respect to the Securities. As permitted by the rules and regulations of
the Commission, this Prospectus does not contain all the information set forth
in the Registration Statement, including the exhibits thereto, which may be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, upon payment of the prescribed fees.
2
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are incorporated herein by reference the following documents of
the Company heretofore filed by it with the Commission:
(a) Annual Report on Form 10-K for the year ended December 31, 1992;
(b) Quarterly Reports on Form 10-Q for the quarters ended March 31,
1993, June 30, 1993 and September 30, 1993; and
(c) Current Reports on Form 8-K dated May 18, 1993, July 20, 1993,
November 19, 1993 and January 24, 1994.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Securities made hereby are
incorporated herein by reference, and such documents shall be deemed to be a
part hereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon request of any such person, a copy of any or all
of the foregoing documents incorporated herein by reference (other than the
exhibits to such documents). Written requests should be directed to:
Scott C. Ulbrich
Executive Vice President
First Security Corporation
79 South Main Street
Salt Lake City, Utah 84111
Telephone requests may be directed to (801) 246-5706.
3
<PAGE>
FIRST SECURITY CORPORATION
General
The Company is a Delaware incorporated multi-bank holding company
headquartered in Salt Lake City, Utah. At December 31, 1993, the Company and
its subsidiaries had total consolidated assets and shareholders' equity of
$10.21 billion and $836 million, respectively.
The principal banking subsidiaries of the Company are First Security
Bank of Utah N.A. ("First Security Utah"), First Security Bank of Idaho, N.A.
("First Security Idaho"), and First Security Bank of New Mexico, N.A. ("First
Security New Mexico"), all of which are commercial banking institutions
providing a broad range of banking, fiduciary, financial and other services.
The Company also operates banks in Wyoming ("First Security Wyoming"), Oregon
("First Security Oregon") and Nevada ("First Security Nevada") (all of the
Company's banking subsidiaries will be referred to hereafter as "the Banks").
Nonbank subsidiaries owned by the Company include a leasing company, a mortgage
company, a securities broker-dealer, an investment adviser, an insurance agency,
a credit life insurance company and a management and services company.
In addition to its equity investments in its subsidiaries, the
Company directly or indirectly raises funds principally to finance the
operations of its nonbank subsidiaries. A substantial portion of the Company's
cash flow is typically derived from dividends directly from its bank and nonbank
subsidiaries, and from interest on loans to the Company's nonbank subsidiaries.
Various statutory provisions limit the amount of dividends subsidiary Banks and
certain nonbank subsidiaries can pay to the Company without regulatory approval.
In addition, because any obligations issued by the Company hereunder will only
be obligations of the Company, not of any of its subsidiary Banks or nonbanking
operations, the holders of obligations issued by the Company hereunder will be
subordinated to certain prior claims by creditors of the Company's subsidiaries.
See "Supervision and Regulation."
The Company maintains its executive offices at 79 South Main Street,
Salt Lake City, Utah 84111, telephone 801-246-6000.
Competition
Based on deposits, at December 31, 1993, First Security Utah was the
largest bank in the State of Utah. Based on deposits, at December 31, 1993,
First Security Idaho was the second largest bank in the State of Idaho. In
Wyoming and Oregon, FSC's banks are smaller, more localized competitors. First
Security Oregon, at March 31, 1993, was the 12th largest bank in Oregon. First
Security Wyoming, at December 31, 1993, was the 18th largest bank in Wyoming.
Of the Company's new subsidiaries, First Security New Mexico is the
second largest bank in the Albuquerque area and the third largest bank in New
Mexico. First Security Nevada is a smaller bank located in the growing Clark
County (Las Vegas) market.
The Company's banks compete with other banking organizations in the
states in which they operate on the basis of price, service and convenience.
Other types of financial institutions, such as savings banks, savings and loan
associations and credit unions offer a wide range of deposit and loan services
(including commercial loans) and, in some instances, fiduciary services. The
Company's banks also compete with brokerage firms, insurance companies and
mutual funds which provide investment products and, in many cases, the
substantial equivalent of checking accounts, credit cards and similar products
traditionally provided by commercial banks. Major retailers compete with the
4
<PAGE>
Company's lending operations by offering credit cards and retail installment
contracts. It is anticipated that competition from nonbank organizations will
continue to grow.
Ratio of Earnings to Fixed Charges and Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends
For the fiscal years ended December 31, 1993, 1992, 1991, 1990 and
1989 the Company's consolidated ratios of earnings to combined fixed charges and
preferred stock dividends, and its ratio of earnings to fixed charges,
excluding interest on deposits were 4.62, 2.28, 1.33, 1.72, respectively; and
such ratios including interest on deposits were 1.71, 1.54, 1.23, 1.08, 1.19,
respectively. For purposes of computing the consolidated ratio of earnings to
combined fixed charges and preferred stock dividends, earnings represent net
income plus income taxes and fixed charges. Fixed charges, excluding interest
on deposits, include interest expense (except interest paid on deposits),
capitalized interest, an amount equal to the pretax earnings required to meet
applicable preferred stock dividend requirements and the interest factor
included in rents. Fixed charges, including interest on deposits, include all
interest expense, capitalized interest, an amount equal to the pretax earnings
required to meet applicable preferred stock dividend requirements and the
interest factor included in rents.
Supervision and Regulation
References in this section to applicable statutes and regulations are
brief summaries only, and do not purport to be complete. The reader should
consult such statutes and regulations themselves for a full understanding of the
details of their operation.
Bank Holding Company Regulation
- -------------------------------
The Company is a bank holding company registered under Bank Holding
Company of 1956 (the "BHC Act"), and is subject to supervision and regulation by
the Federal Reserve Board. Federal laws subject bank holding companies to
particular restrictions on the types of activities in which they may engage, and
to a range of supervisory requirements and activities, including regulatory
enforcement actions for violation of laws and policies. In addition, Utah law
authorizes the state bank regulators to supervise and regulate under limited
circumstances a holding company controlling a Utah domiciled bank.
- Activities "Closely Related" to Banking. The BHC Act prohibits a
bank holding company, with certain limited exceptions, from acquiring direct or
indirect ownership or control of any voting shares of any company which is not a
bank or from engaging in any activities other than those of banking, managing or
controlling banks and certain other subsidiaries, or furnishing services to or
performing services for its subsidiaries. One principal exception to these
prohibitions allows the acquisition of interests in companies whose activities
are found by the Federal Reserve Board to be so closely related to banking,
managing, or controlling banks as to be a proper incident thereto. Such
activities include making or servicing loans, performing certain data processing
services, acting as an investment or financial advisor to certain investment
trusts and investment companies, and providing securities brokerage services.
- Securities Activities. The Federal Reserve Board has approved
applications by bank holding companies to engage, through nonbank subsidiaries,
in certain securities underwriting activities, provided that the affiliates
would not be "principally engaged" in such activities for purposes of Section 20
of the Glass-Steagall Act. In very limited situations, holding companies have
been permitted to underwrite and deal in corporate debt and equity securities
through such subsidiaries.
5
<PAGE>
- Safe and Sound Banking Practices. Bank holding companies are not
permitted to engage in unsafe and unsound banking practices. The Federal Reserve
Board may order a bank holding company to terminate an activity or control of a
nonbank subsidiary if such activity or control constitutes a significant risk to
the financial safety, soundness or stability of a subsidiary bank and is
inconsistent with sound banking principles.
The Financial Institutions Reform, Recovery, and Enforcement Act of
1989 ("FIRREA") expanded the Federal Reserve Board's authority to prohibit
activities of bank holding companies and their nonbanking subsidiaries which
represent unsafe and unsound banking practices or which constitute violations of
laws or regulations. Notably, FIRREA increased the amount of monetary penalties
which the Federal Reserve Board can assess for such practices or violations to
as high as $1 million per day. FIRREA also expanded the scope of individuals
and entities against which such penalties may be assessed.
- Anti-Tying Restrictions. Bank holding companies and their bank and
nonbank affiliates are prohibited from tying the provision of certain services,
such as extensions of credit, to other services offered by a holding company or
its affiliates.
- Annual Reporting; Examinations. The Company is required to file an
annual report with the Federal Reserve Board and such additional information as
the Federal Reserve Board may require pursuant to the BHC Act. The Federal
Reserve Board may examine a bank holding company or any of its subsidiaries, and
charge the company for the cost of such an examination.
- Capital Adequacy Requirements. The Federal Reserve Board monitors
the capital adequacy of bank holding companies. The Federal Reserve Board uses
a combination of risk-based guidelines and leverage ratios to evaluate capital
adequacy. The Federal Reserve Board has adopted a system based upon the Basle
Accord, an international standard for risk-based capital guidelines, to evaluate
the capital adequacy of bank holding companies. Under the risk-based capital
guidelines, different categories of assets are assigned different risk weights,
based generally on the perceived credit risk of the asset. These risk weights
are multiplied by corresponding asset balances to determine a "risk-weighted"
asset base. Certain off-balance sheet items, which previously were not
expressly considered in capital adequacy computations, are added to the risk-
weighted asset base by converting them to a balance sheet equivalent and
assigning to them the appropriate risk weight. Total capital is defined as the
sum of "Tier 1" and "Tier 2" capital elements, with "Tier 2" being limited to
100% of "Tier 1." For bank holding companies, "Tier 1" capital includes, with
certain restrictions, common stockholders' equity, retained earnings, non-
cumulative perpetual preferred stock and minority interests in consolidated
subsidiaries less certain intangibles. "Tier 2" capital includes, with certain
limitations, certain forms of non-qualifying perpetual preferred stock, maturing
capital instruments (such as qualifying convertible and/or subordinated debt),
the reserve for possible loan losses and specified levels of certain
intangibles.
In addition to the risk-based capital guidelines, the Federal Reserve
Board has adopted the use of a leverage ratio as an additional tool to evaluate
the capital adequacy of banks and bank holding companies. The leverage ratio is
a company's "Tier 1" capital divided by its adjusted total assets. This
leverage ratio must be at least 3.0% for institutions with the Federal Reserve's
highest asset rating, called "CAMEL 1". Institutions which are not CAMEL 1
rated are expected to maintain a leverage ratio of 4.0% to 5.0%, and
institutions planning acquisitions are expected to maintain higher ratios.
The following table sets forth the current regulatory requirements for capital
ratios of bank holding companies as compared with the Company's capital ratios
at December 31, 1993:
6
<PAGE>
<TABLE>
<CAPTION>
------------------------------------------------
Tier 1 Total
Capital to Capital to
Leverage Risk-Weighted Risk-Weighted
Ratio/(1)/ Assets/(2)/ Assets/(3)/
- ---------------------------------------------------------------------------
<S> <C> <C> <C>
Regulatory minimum 4.00-5.00% 4.00% 8.00%
- ---------------------------------------------------------------------------
The Company's Actual 8.08% 11.82% 14.15%
- ---------------------------------------------------------------------------
</TABLE>
/(1)/ The leverage ratio is defined as the ratio of Tier 1 capital (using final
1992 risk-based capital guidelines to define Tier 1 capital) to average assets,
net of goodwill. Federal Reserve Board Guidelines provide that all bank holding
companies (other than those that meet certain criteria) maintain a minimum
leverage ratio of 3%, plus an additional cushion of 100 to 200 basis points.
The guidelines also state that banking organizations experiencing internal
growth or making acquisitions will be expected to maintain "strong capital
positions" substantially above the minimum supervisory levels without
significant reliance on intangible assets.
/(2)/ Shareholders' equity less goodwill (Tier 1 capital) divided by risk-
weighted assets.
/(3)/ Tier 1 capital plus reserve for possible loan losses (limited to 1.25% of
total risk-weighted assets) plus qualified subordinated and convertible debt
(Tier 2 capital) divided by risk-weighted assets.
Bank regulators continue to indicate their desire to raise capital
requirements applicable to banking organizations beyond their current levels.
Management cannot predict whether these capital requirements will change or
whether they will materially affect the Company's financial position or
operating ability.
- Imposition of Liability for Undercapitalized Subsidiaries. The
Federal Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA")
requires each federal banking agency to revise its capital standards to reflect
the risk-weighting discussed above. The new law also requires each federal
banking agency to specify the levels at which an insured institution would be
considered "well capitalized," "adequately capitalized," "undercapitalized,"
"significantly undercapitalized" and "critically undercapitalized." Under the
regulations adopted by the banking agencies, each of the Company's subsidiary
banks was "well capitalized" as of December 31, 1993.
FDICIA requires bank regulators to take "prompt corrective action" to
resolve problems associated with insured depository institutions. In the event
an institution becomes "undercapitalized," it must submit a capital restoration
plan. If an institution becomes "significantly undercapitalized" or "critically
undercapitalized," additional and significant limitations are placed on the
institution. The capital restoration plan of an undercapitalized institution
will not be accepted by the regulators unless each company "having control of"
the undercapitalized institution "guarantees" the subsidiary's compliance with
the capital restoration plan until it becomes "adequately capitalized." The
Company controls each of its subsidiaries for purposes of this statute and
therefore is required to ensure that each subsidiary remains adequately
capitalized.
The "prompt corrective action" provisions of FDICIA reflect the same
concerns which gave rise to a position adopted by the Federal Reserve Board
known as the "source of strength doctrine," which is based on the Federal
Reserve Board's Regulation Y. Regulation
7
<PAGE>
Y directs bank holding companies to "serve as a source of financial and
managerial strength" to their subsidiary banks, and bars them from engaging in
unsafe and unsound practices.
In addition, FIRREA also contains a "cross-guarantee" provision which
makes commonly controlled insured depository institutions liable to the FDIC for
any losses incurred in connection with the failure of an affiliated insured
depository institution.
- Audit Reports. Beginning January 1, 1994, FDICIA requires insured
depository institutions with $500 million or more in total assets, such as the
Company and each of its First Security Utah, First Security Idaho and First
Security New Mexico subsidiaries, to submit annual audit reports prepared by
independent auditors to federal and state regulators. In most cases, the audit
report of the institution's holding company can be used to satisfy this
requirement. The annual audit report shall include financial statements
prepared in accordance with generally accepted accounting principles, statements
concerning management's responsibility for the financial statements, internal
controls and compliance with legal requirements designated by the FDIC, and an
attestation by the auditor regarding the statements of management. FDICIA
requires that independent audit committees be formed, consisting of outside
directors only. The committees of institutions with assets of $3 billion or
more, such as the Company, must include members with experience in banking or
financial management, must have access to outside counsel, and must not include
representatives of large customers. The Company's Board of Directors includes
an independent audit committee which complies with these requirements.
- Acquisitions by Bank Holding Companies. The BHC Act requires every
bank holding company to obtain the prior approval of the Federal Reserve Board
before it may acquire all or substantially all of the assets of any bank, or
ownership or control of any voting shares of any bank, if after such acquisition
it would own or control, directly or indirectly, more than 5% of the voting
shares of such bank.
The Federal Reserve Board will only allow the acquisition by a bank
holding company of an interest in any bank located in another state if the state
in which the target bank is located expressly authorizes such acquisition. Utah
banking laws permit, in certain circumstances, out-of-state bank holding
companies to acquire certain existing banks and bank holding companies in Utah.
In addition, FDICIA has eased restrictions on cross-industry mergers
between commercial banks and savings institutions. Members of the Bank
Insurance Fund ("BIF"), such as the Company, and the Savings Association
Insurance Fund are generally allowed to merge, assume each other's deposits, and
transfer assets in exchange for an assumption of deposit liabilities.
Subsidiary Bank Regulation
- --------------------------
Three of the Company's bank subsidiaries are national banks, which are
subject to regulation and supervision by the Office of the Comptroller of the
Currency (the "Comptroller"). The other banks are each subject to regulation by
regulators in their respective states and the FDIC. Bank regulations on both
the federal and state levels are broad in their scope and materially affect the
business of the Company and its banks.
8
<PAGE>
All of the Company's subsidiary banks are subject to the requirements
and restrictions under federal and state law, including requirements to maintain
reserves against deposits, restrictions on the types and amounts of loans that
may be granted and the interest that may be charged thereon, and limitations on
the types of investments that may be made and the types of services that may be
offered. Various consumer laws and regulations also affect the operations of
the banks. In addition to the impact of regulation, commercial banks are
affected significantly by actions of the Federal Reserve Board as it attempts to
control the money supply and credit availability.
- Permissible Activities for State-Chartered Institutions/Equivalence
to National Bank Powers. FDICIA provides that, effective December 19, 1992, no
state bank or subsidiary thereof may engage as principal in any activity not
permitted for national banks, unless the institution complies with applicable
capital requirements and the FDIC determines that the activity poses no
significant risk to the insurance fund. In general, statutory restrictions on
the activities of banks are aimed at protecting the safety and soundness of
depository institutions. Many of the statutory restrictions limit the
participation of such institutions in the securities and insurance product
markets. Each of the state-chartered banking subsidiaries of the Company is in
compliance with the restrictions imposed by FDICIA.
- Restrictions on Transactions With Affiliates. Section 23A of the
Federal Reserve Act imposes quantitative and qualitative limits on loan
transactions between a bank and its affiliates, and also requires certain levels
of collateral for such loans. It also limits the amount of advances to third
parties which are collateralized by the securities or obligations of the Company
or its subsidiaries. Section 23B of the Federal Reserve Act requires that
certain transactions between the Company's subsidiary banks and their affiliates
must be on terms at least as favorable to the Company or its subsidiaries as
those prevailing for comparable transactions with other nonaffiliated companies.
In the absence of such comparable transactions, any transaction between the
Company and its affiliates must be on terms and under circumstances, including
credit standards, that in good faith would be offered to or would apply to
nonaffiliated companies. The Company is currently in material compliance with
the requirements of Sections 23A and 23B.
- Restrictions on Subsidiary Bank Dividends. The Federal Reserve
Board, the Comptroller and the FDIC have each issued policy statements to the
effect that bank holding companies and member banks, national banks and state
banks should generally only pay dividends out of current operating earnings. The
prior approval of the Comptroller is required if the total of all dividends
declared by the board of directors of a national bank, such as First Security
Utah, First Security Idaho and First Security New Mexico, in any calendar year
will exceed the aggregate of the bank's net profits (as defined by regulatory
authorities) for that year and its retained net profits for the preceding two
years. Similar restrictions govern the other banking subsidiaries of the
Company. In addition, national banks can pay dividends only to the extent that
retained net profits exceed "bad debts", which are generally defined to include
the principal amount of loans that are in arrears as to interest by nine months
or more and that are not secured and that are not in the process of collection.
As of December 31, 1993, the Company's banks could
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have declared additional dividends to the Company of approximately $119.97
million without regulatory approval or restriction. Federal banking regulators
also may prohibit federally insured banks from paying dividends if the payment
of such dividend would leave the bank "undercapitalized" as defined in FDICIA
and the implementing regulations, or the payment of dividends would, in light of
the financial condition of such bank, constitute an unsafe or unsound practice.
Applicable Nevada, Wyoming and Oregon law place similar restrictions on the
payment of dividends by the Company's banks organized under the laws of those
states.
- Examinations. The FDIC periodically examines and evaluates insured
banks. Based upon such an evaluation, the FDIC may revalue the assets of an
insured institution and require that it establish specific reserves to
compensate for the difference between the FDIC-determined value and the book
value of such assets. FDICIA requires that these on-site examinations be
conducted every 12 months, except that certain well capitalized banks may be
examined every 18 months. The rules and regulations of the Comptroller, which
regulates the Company's national banks, and the various state banking
authorities regulating the Company's state-chartered banks also provide for
periodic examinations by those agencies.
- Standards for Safety and Soundness. As part of FDICIA's efforts to
promote the safety and soundness of depository institutions and their holding
companies, the Federal Reserve Board issued for public comment on April 19,
1993, proposed regulations on standards of safety and soundness which specify
operational and management standards (addressing internal controls, loan
documentation, credit underwriting and interest rate risk), asset quality and
earnings. The impact of these regulations cannot be determined until final
regulations are issued.
- Deposit Insurance Assessments. FDIC-insured depository institutions
that are members of the BIF must pay insurance premiums at rates between 23 and
31 basis points on insured deposits depending on the bank's capital category and
bank regulators' supervisory category. Institutions assigned to higher-risk
categories--that is, institutions that pose a greater risk of loss to their
respective deposit insurance funds--would pay assessments at higher rates than
would institutions that pose a lower risk. The FDIC can impose special
assessments on member institutions, such as each of the Company's Bank
subsidiaries, to cover the cost of borrowings from the U.S. Treasury, the
Federal Financing Bank, and BIF member banks. The semiannual assessment is based
on: (1) the probability of a loss to the BIF; (2) the potential magnitude of the
loss; and (3) the revenue and reserve needs of the fund.
- FIRREA's Impact. FIRREA's primary purpose was to restructure the
statutory and regulatory framework applicable to savings associations, and
establish a mechanism for resolving insolvent thrift institution cases. Certain
provisions of FIRREA, however, affect the bank subsidiaries of holding
companies, including the Company. Among the most significant of these provisions
are those which: (1) clarify the powers and duties of the FDIC as receiver or
conservator of a bank; (2) enhance the enforcement powers of the federal banking
regulators;
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(3) establish new reporting requirements under the Home Mortgage
Disclosure Act designed to prevent discriminatory lending practices; (4) require
the federal banking agencies to make public a rating of a bank's performance
under the Community Reinvestment Act; and (5) prohibit banks from entering into
contracts with persons providing goods, products or services if the performance
of such contracts would adversely affect the bank's safety and soundness.
FIRREA's primary impact on commercial banks has been to increase the enforcement
authority of federal regulators and to expand the scope of potential targets of
enforcement actions.
- Expanding Enforcement Authority. One of the major additional
burdens imposed on the banking industry by FDICIA is the increased ability of
banking regulators to monitor the activities of banks and their holding
companies. In addition, the Federal Reserve Board, Comptroller and FDIC are
given extensive authority to police unsafe or unsound practices and violations
of applicable laws and regulations by depository institutions and their holding
companies. For example, the FDIC may terminate the deposit insurance of any
institution which it determines has engaged in an unsafe or unsound practice.
The agencies can also assess civil money penalties of up to $1 million per day,
issue cease and desist or removal orders, seek injunctions, and publicly
disclose such actions. FDICIA, FIRREA and other laws have expanded the agencies'
authority in recent years, and the agencies have not yet fully tested the limits
of their powers.
- Current Regulatory Structure. The laws and regulations affecting
banks and bank holding companies are under continual review. For example,
recent federal legislative proposals include bills which would consolidate all
banking regulators into one or two regulatory agencies and others which would
permit interstate branching to various degrees. The rules and the regulatory
agencies in this area have changed significantly over recent years, and there is
reason to expect that similar changes, including changes which may materially
affect the Company's operations, will continue in the future.
USE OF PROCEEDS
Unless otherwise set forth in the Prospectus Supplement, the net
proceeds from the sale of the Securities will be applied to the Company's
general funds to be utilized for such corporate purposes as may be determined by
management, including payment of cash amounts due upon completion of
acquisitions, funding of investments in or extensions of credit to the Company's
subsidiaries, and repayment of borrowings. Except as otherwise described in the
Prospectus Supplement, specific allocations of the proceeds to such purposes
will not have been made at the date of the Prospectus Supplement, although
management of the Company will have determined that funds should be raised at
that time in anticipation of future funding requirements. The precise amounts
and timing of payments due upon completion of acquisitions, of investments in
and extensions of credit to the subsidiaries, and the repayment of borrowings
will depend upon funding requirements and the availability of other funds.
Pending such application, net proceeds may be temporarily invested or applied to
the reduction of short-term indebtedness.
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DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets
forth certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by a Prospectus Supplement and the extent, if any, to which such general
provisions may not apply thereto will be described in the Prospectus Supplement
relating to such Debt Securities.
The Debt Securities may be Senior Debt Securities or Subordinated Debt
Securities (both including but not limited to Medium-Term Notes). The Senior
Debt Securities will be issued under an Indenture, to be dated as of March 1,
1994 (the "Senior Indenture") between the Company and The First National Bank of
Chicago, as Trustee (together with its successor trustee, if any, the "Senior
Trustee"), and the Subordinated Debt Securities will be issued under an
Indenture, to be dated as of March 1, 1994 (the "Subordinated Indenture")
between the Company and The First National Bank of Chicago, as Trustee (together
with its successor trustee, if any, the "Subordinated Trustee"). The Senior
Indenture and the Subordinated Indenture are collectively referred to herein as
the "Indentures," copies of the forms of which are filed as exhibits to the
Registration Statement of which this Prospectus is a part. References to the
"Trustee" below shall mean the Senior Trustee or the Subordinated Trustee. The
following summaries of certain provisions of the Indenture do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Indenture applicable to a particular series of
Debt Securities (the "Applicable Indenture"), including the definitions therein
of certain terms. Wherever particular sections, articles or defined terms of the
Indentures are referred to, it is intended that such sections, articles or
defined terms shall be incorporated herein by reference. Section and article
references used herein are references to the Applicable Indenture. Capitalized
terms not otherwise defined herein shall have the meaning given them in the
Applicable Indenture.
General
Neither Indenture limits the amount of Debt Securities which may be
issued thereunder, and Debt Securities of any series may be issued thereunder up
to the aggregate principal amount which may be authorized from time to time by
the Company. Neither the Indentures nor the Debt Securities will limit or
otherwise restrict the amount of other indebtedness which may be incurred or the
other securities which may be issued by the Company or any of its Subsidiaries.
The Debt Securities will be unsecured direct obligations of the Company.
Because the Company is a holding company, its rights and the rights of
its creditors, including the holders of the Debt Securities, to participate in
the assets of any Subsidiary upon the latter's liquidation or recapitalization
would be subject to the prior claims of such Subsidiary's creditors except to
the extent that the Company may itself be a creditor with claims against the
Subsidiary that are recognized by a court having jurisdiction over such claims.
Unless otherwise indicated in the Prospectus Supplement, principal of
and any premium and interest on the Debt Securities will be payable, and the
transfer of the Debt Securities will be registrable, at the currently designated
office of the Trustee at One First
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National Plaza, Chicago, Illinois 60670. In addition, payment of interest on
Debt Securities may, at the option of the Company, be made by check mailed to
the address of the person entitled thereto as it appears on the Security
Register. (Sections 301, 305 and 1002). Acting in accordance with each
Indenture, the Company intends also to designate the principal office of First
Security Utah as an office where principal, premium, and interest may be paid
and the transfer of the Debt Securities may be registered. (Sections 301, 305
and 1002)
Unless otherwise indicated in the Prospectus Supplement, the Debt
Securities will be issued only in fully registered form, without coupons, in
denominations of $1,000 and any integral multiple thereof. (Section 302) No
service charge will be made for any registration of transfer or exchange of the
Debt Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
(Section 302) The Indentures also provide that the Debt Securities of any
series, if so specified with respect to a particular series, may be issued in
permanent global form. See "Global Debt Securities."
Reference is made to the Prospectus Supplement for a description of
the following terms, where applicable, of each series of Debt Securities in
respect of which this Prospectus is being delivered: (1) the title of the Debt
Securities of the series; (2) any limit on the aggregate principal amount of the
Debt Securities of the series; (3) the date or dates on which the principal of
the Debt Securities of the series will be payable; (4) the rate or rates (which
may be fixed or variable) at which the Debt Securities of the series will bear
interest, if any, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable, and the Regular
Record Dates for such Interest Payment Dates; (5) the place or places where the
principal of, premium, if any, and interest on the Debt Securities of the series
shall be payable; (6) the period or periods within which, the price or prices at
which and the terms and conditions upon which the series of Debt Securities may
be redeemed, in whole or in part, at the option of the Company; (7) the
obligation, if any, of the Company to redeem or purchase the Debt Securities of
the series pursuant to any sinking fund or analogous provision or at the option
of the Holders 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 or purchased, in whole or in part, pursuant to such
obligation; (8) the denomination or denominations in which such Debt Securities
are authorized to be issued; (9) the currency of payment of principal of,
premium, if any, and interest on the Debt Securities of the series; (10) any
index or formula used to determine the amount of payment of principal of,
premium, if any, and interest on the Debt Securities of the series; (11) 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; (12) whether the Debt Securities of the
series shall be issued in whole or in part in the form of one or more Global
Securities and, if so, the Depositary for such Global Security or Securities;
(13) the portion of the principal amount of such Debt Securities which will be
payable upon declaration of acceleration of the Maturity thereof, if other than
the principal thereof; (14) any additional Events of Default or, in the case of
Subordinated Debt Securities, Default, solely with respect to the Debt
Securities; (15) whether the provisions of the applicable Indenture described
under "Defeasance and Covenant Defeasance" will be applicable to such Debt
Securities; (16) any additional restrictive covenants included solely for the
benefit of the Debt Securities; (17) if the Debt Securities are Subordinated
Debt Securities, whether the provisions in the Subordinated
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Indenture described under "Subordination of Subordinated Debt Securities" or
other subordination provisions will be applicable to such Subordinated Debt
Securities; and (18) any other terms of the series of Debt Securities not
inconsistent with the provisions of the Applicable Indenture.
The Debt Securities may be issued as Original Issue Discount Debt
Securities, to be offered and sold at a discount below their stated principal
amount. Any such Original Issue Discount Debt Securities will be described in
the Prospectus Supplement related thereto, which description will include a
discussion of the material federal income tax consequences and other special
considerations applicable to any such Original Issue Discount Debt Securities.
An "Original Issue Discount Security" is generally a Debt Security which
provides for an amount less than the principal amount thereof to be due and
payable upon the declaration of acceleration of the Maturity thereof upon the
occurrence of an Event of Default and the continuation thereof.
Conversion and Exchange
The terms, if any, on which Debt Securities of any series are
convertible into or exchangeable for shares of Common Stock, Preferred Stock or
Warrants will be set forth in the Prospectus Supplement related thereto. Such
terms may include provisions for conversion or exchange, either mandatory, at
the option of the holder, or at the option of the Company, in which the number
of shares of Common Stock, Preferred Stock or Warrants to be received by the
holders of Debt Securities would be calculated according to the market price of
Common Stock, Preferred Stock or Warrants as of a time stated in the Prospectus
Supplement.
Subordination of Subordinated Debt Securities
The payment of the principal of and interest on the Subordinated Debt
Securities will, to the extent set forth in the Subordinated Indenture, be
subordinated in right of payment to the prior payment in full of all Senior
Indebtedness (as defined in the Subordinated Indenture). In certain events of
insolvency, the payment of the principal of and interest on the Subordinated
Debt Securities will, to the extent set forth in the Subordinated Indenture,
also be effectively subordinated in right of payment to the prior payment in
full of all Other Financial Obligations (as defined in the Subordinated
Indenture and defined below). Upon any payment or distribution of assets to
creditors upon any liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors, marshalling of assets or any
bankruptcy, insolvency or similar proceedings of the Company, the holders of all
Senior Indebtedness will first be entitled to receive payment in full of all
amounts due or to become due thereon before the Holders of the Subordinated Debt
Securities will be entitled to receive any payment in respect of the principal
of or interest on the Subordinated Debt Securities. If upon any such payment or
distribution of assets to creditors, there remain, after giving effect to such
subordination provisions in favor of the holders of Senior Indebtedness, any
amounts of cash, property or securities available for payment or distribution in
respect of Subordinated Debt Securities (as defined in the Subordinated
Indenture and defined below, "Excess Proceeds") and if, at such time, any
Entitled Persons in respect of Other Financial Obligations have not received
payment in full of all amounts due or to become due on or in respect of such
Other Financial Obligations, then such Excess Proceeds shall first be applied
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to pay or provide for the payment in full of such Other Financial Obligations
before any payment or distribution may be made in respect of the Subordinated
Debt Securities. In the event of the acceleration of the maturity of any Debt
Securities, the holders of all Senior Indebtedness will first be entitled to
receive payment in full of all amounts due thereon before the Holders of the
Subordinated Debt Securities will be entitled to receive any payment upon the
principal of or interest on the Subordinated Debt Securities. No payments on
account of principal of or interest on the Subordinated Debt Securities or on
account of the purchase or acquisition of Subordinated Debt Securities may be
made if there shall have occurred and be continuing a default in any payment
with respect to Senior Indebtedness, or if any judicial proceeding shall be
pending with respect to any such default. (Article Thirteen of the Subordinated
Indenture)
By reason of such subordination in favor of the holders of Senior
Indebtedness, in the event of insolvency, creditors of the Company who are not
holders of Senior Indebtedness or of the Subordinated Debt Securities may
recover less, ratably, than Holders of Senior Indebtedness and may recover more,
ratably, than the Holders of the Subordinated Debt Securities. By reason of the
obligation of the Holders of Subordinated Debt Securities to pay over any Excess
Proceeds to Entitled Persons in respect of Other Financial Obligations, in the
event of insolvency, holders of Existing Subordinated Indebtedness (as defined
in the Subordinated Indenture and defined below) may recover less, ratably, than
Entitled Persons in respect of Other Financial Obligations and may recover more,
ratably, than the Holders of Subordinated Debt Securities.
Unless otherwise specified in the Prospectus Supplement relating to
the particular series of Subordinated Debt Securities offered thereby, Senior
Indebtedness is defined in the Subordinated Indenture as (a) the principal of
(and premium, if any), and interest on all indebtedness of the Company for money
borrowed, whether outstanding on the date of execution of the Subordinated
Indenture or thereafter created, assumed or incurred, except (i) such
indebtedness as is by its terms expressly stated to be junior in right of
payment to the Subordinated Debt Securities and (ii) such indebtedness as is by
its terms expressly stated to rank pari passu with the Subordinated Debt
---- -----
Securities and (b) any deferrals, renewals or extensions of any such Senior
Indebtedness; provided, however, that Senior Indebtedness shall not include
-------- -------
Existing Subordinated Indebtedness. (Section 101 of the Subordinated Indenture)
The term "indebtedness for money borrowed" when used with respect to the Company
is defined to mean any obligation of, or any obligation guaranteed by, the
Company for the repayment of borrowed money, whether or not evidenced by bonds,
debentures, notes or other written instruments, and any deferred obligation of,
or any such obligation guaranteed by, the Company for the payment of the
purchase price of property or assets. (Section 101 of the Subordinated
Indenture)
Unless otherwise specified in the Prospectus Supplement relating to
the particular series of Subordinated Debt Securities offered thereby, Existing
Subordinated Indebtedness means the Company's 7.50% Subordinated Notes due 2002
issued under an Indenture, dated as of August 1, 1991, between the Company and
Norwest Bank Minnesota, N.A., as trustee.
Unless otherwise specified in the Prospectus Supplement relating to
the particular series of Subordinated Debt Securities offered thereby, Other
Financial Obligations
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means (a) obligations of the Company under direct credit substitutes, (b)
obligations of, or any such obligation directly or indirectly guaranteed by, the
Company for purchased money or funds, (c) any deferred obligation of, or any
such obligation directly or indirectly guaranteed by, the Company for the
payment of the purchase price of property or assets, (d) any obligation of, or
any such obligation directly or indirectly guaranteed by, the Company for the
payment of rent or other amounts under a lease of property or assets which
obligation is required to be classified and accounted for as a capitalized lease
on the balance sheet of the Company under generally accepted accounting
principles, and (e) all obligations of the Company to make payment pursuant to
the terms of financial instruments, such as (i) securities contracts and
foreign currency exchange contracts, (ii) derivative instruments, such as
swap agreements (including interest rate and foreign exchange rate swap
agreements), cap agreements, floor agreements, collar agreements, interest rate
agreements, foreign exchange rate agreements, options, commodity futures
contracts, commodity option contracts and (iii) in the case of both (i) and (ii)
above, similar financial instruments, other than (A) obligations on account of
Senior Indebtedness and (B) obligations on account of indebtedness for money
borrowed ranking pari passu with or subordinate to the Subordinated Debt
---- -----
Securities. Unless otherwise specified in the Prospectus Supplement relating to
the particular series of Subordinated Debt offered thereby, Entitled Persons
means any person who is entitled to payment pursuant to the terms of Other
Financial Obligations. (Section 101 of the Subordinated Indenture)
Indebtedness of the Company senior to the Subordinated Debt
Securities, at March 1, 1994, totalled approximately $319 million ($244 million
if the currently outstanding subordinated debt securities are ranked pari passu
----------
with the new Subordinated Debt Securities).
The Company's obligations under the Subordinated Debt Securities shall
rank pari passu in right of payment with each other and with the Existing
---- -----
Subordinated Indebtedness, subject to the obligations of the Holders of
Subordinated Debt Securities to pay over any Excess Proceeds to Entitled Persons
in respect of Other Financial Obligations as provided in the Subordinated
Indenture.
The Subordinated Indenture does not limit or prohibit the incurrence
of additional Senior Indebtedness, which may include indebtedness that is senior
to the Subordinated Debt Securities, but subordinate to other obligations of the
Company, including obligations of the Company in respect of Other Financial
Obligations. The Senior Debt Securities, when issued, will constitute Senior
Indebtedness.
The Prospectus Supplement may further describe the provisions, if any,
applicable to the subordination of the Subordinated Debt Securities of a
particular series.
Certain Covenants in the Senior Indenture
Restrictions on Certain Dispositions of Major Constituent Banks. The
---------------------------------------------------------------
Senior Indenture provides that, except as described below under "Consolidation,
Merger and Sale of Assets", the Company will not (a) sell, assign, transfer, or
otherwise dispose of any shares of, or securities convertible into, or options,
warrants or rights to subscribe for or purchase shares of, Voting Stock of a
Major Constituent Bank (as defined below) (or a Subsidiary
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owning Voting Stock of a Major Constituent Bank) or permit a Major Constituent
Bank (or a Subsidiary owning Voting Stock of a Major Constituent Bank) to issue
any shares of, or securities convertible into or options, warrants or rights to
subscribe for or purchase shares of such Voting Stock, if, in each case, after
giving effect to any such transaction and to the issuance of the maximum number
of shares of Voting Stock of such Major Constituent Bank (or Subsidiary)
issuable upon the exercise of all such convertible securities, options, warrants
or rights, the Major Constituent Bank would cease to be a Controlled Subsidiary,
or (b) permit a Major Constituent Bank (or a Subsidiary owning Voting Stock of a
Major Constituent Bank) to (i) merge or consolidate with or into any other
corporation, unless the surviving corporation is, or upon consummation of the
merger or consolidation will become, a Controlled Subsidiary; or (ii) lease,
sell or transfer all or substantially all of its properties and assets to any
Person, except to a Controlled Subsidiary or a Person that, upon such lease,
sale or transfer, will become a Controlled Subsidiary. The Senior Indenture,
however, provides that any such sale or other disposition of securities, any
such merger or consolidation or any such lease, sale or transfer of properties
and assets will not be prohibited (i) if required by any law or any rule,
regulation or order of any governmental agency or authority, (ii) if required as
a condition imposed by any law or rule, regulation or order of any governmental
agency or authority to the acquisition by the Company, directly or indirectly,
of any Person, provided that, after giving effect to such other prohibited
transaction and such acquisition, (A) such Person will be a Controlled
Subsidiary and (B) the Consolidated Banking Assets (as defined below) of the
Company will be at least equal to the Consolidated Banking Assets of the Company
prior thereto, or (iii) if the proceeds from such otherwise prohibited
transaction are within 180 days after such transaction, or such longer period of
time as may be necessary to obtain regulatory approval in connection therewith,
invested by the Company, pursuant to an understanding or agreement in principle
reached at the time of such otherwise prohibited transaction, in one or more
Controlled Subsidiaries (including any Person which upon such investment becomes
a Controlled Subsidiary) engaged in the banking business or any other business
then legally permissible for bank holding companies. (Section 1008)
"Major Constituent Bank" means (i) First Security Utah, First Security
Idaho and First Security New Mexico or (ii) any Subsidiary Bank the Consolidated
Banking Assets of which constitute 20% or more of the aggregate Consolidated
Banking Assets of all Subsidiary Banks. As of December 31, 1993, First Security
Utah, First Security Idaho and First Security New Mexico were the only Major
Constituent Banks. "Controlled Subsidiary" means any Subsidiary more than 80%
of the outstanding shares of the Voting Stock of which is at the time owned
directly or indirectly by the Company or by one or more Controlled Subsidiaries
or by the Company and one or more Controlled Subsidiaries. "Consolidated
Banking Assets" of a Subsidiary Bank means all assets owned directly or
indirectly by such Subsidiary Bank and reflected on the Company's consolidated
balance sheet prepared in accordance with generally accepted accounting
principles. (Section 101)
Restrictions on Liens on Voting Stock of Major Constituent Banks. The
----------------------------------------------------------------
Senior Indenture provides that the Company will not create, assume, incur or
suffer to be created, assumed or incurred or to exist any pledge, encumbrance or
lien, as security for indebtedness for borrowed money, upon any shares of, or
securities convertible into or options, warrants or rights to subscribe for or
purchase shares of, Voting Stock of a Major Constituent Bank now or hereafter
owned by the Company, directly or indirectly, without making effective provision
whereby any Debt Securities shall be equally and ratably secured with any and
all
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such indebtedness if, treating such pledge, encumbrance or lien as a transfer of
the shares of, or securities convertible into or options, warrants, or rights to
subscribe for or purchase shares of, Voting Stock subject thereto to the secured
party and after giving effect to the issuance of the maximum number of shares of
Voting Stock of such Major Constituent Bank issuable upon the exercise of all
such convertible securities, options, warrants or rights, the Major Constituent
Bank would not continue to be a Controlled Subsidiary. (Section 1009)
Neither the Senior Indenture nor the Subordinated Indenture contain any
restriction on the Company's ability to enter into a highly leveraged
transaction or any provision affording any special protection to Holders in the
event that the Company engages in a highly leveraged transaction.
Consolidation, Merger, and Sale of Assets
The Indenture provides that the Company, without the consent of the
Holders of any of the Outstanding Debt Securities, may consolidate with or merge
into, or convey, transfer, or lease its properties and assets substantially as
an entirety to, any Person, provided that (a) the successor is a Person
organized under the laws of any domestic jurisdiction and assumes the Company's
obligations on the Debt Securities and under the Indenture, (b) after giving
effect to the transaction there exists no Event of Default or, in the case of
the Subordinated Indenture, Default, and no event which, after notice or lapse
of time would become an Event of Default or, in the case of the Subordinated
Indenture, Default, shall have occurred and be continuing, and (c) certain other
conditions are met. (Section 801)
Global Debt Securities
If any Debt Securities of a series are to be issued in permanent global
form, the Prospectus Supplement relating thereto will describe the
circumstances, if any, under which beneficial owners of interests in any such
permanent global Debt Security may exchange such interests for certificated Debt
Securities of such series and of like tenor and principal amount in any
authorized form and denomination. Principal of and any premium and interest on
a permanent global Debt Security will be payable in the manner described in the
Prospectus Supplement relating thereto. (Section 205).
Defeasance and Covenant Defeasance
The Indentures provide under Article 13 (for the Senior Indenture) and
Article 14 (for the Subordinated Indenture), if such provision is made
applicable to the particular Debt Securities of any series pursuant to Section
301 of the Applicable Indenture (which will be indicated in the Prospectus
Supplement applicable thereto), that the Company may elect either (A) to defease
and be discharged from any and all obligations with respect to such Debt
Securities then outstanding (including, in the case of Subordinated Debt
Securities, the provisions described under "Subordination of Subordinated Debt
Securities" and except for the obligations to register the transfer or exchange
of such Debt Securities, to replace temporary or mutilated, destroyed, lost or
stolen Debt Securities, to maintain an office or agency in respect of the Debt
Securities and to hold moneys for payment in trust) ("defeasance") or (B) to be
released from its obligations with respect to such Debt Securities then
outstanding under Sections 1006 through Section 1009 of the Senior Indenture and
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Sections 1006 and 1007 of the Subordinated Indenture (and any other sections
applicable to such Debt Securities that are determined pursuant to Section 301
to be subject to covenant defeasance), the occurrence of an event of default
specified in, in the case of Senior Debt Securities, Section 501(4) of the
Senior Indenture, and in the case of Subordinated Debt Securities, Section
503(C) of the Subordinated Indenture (with respect to Sections 1006 through
Section 1009 of the Senior Indenture and Sections 1006 and 1007 of the
Subordinated Indenture or any other section applicable to such Debt Securities
that are determined pursuant to Section 301 to be subject to covenant
defeasance), or, in the case of Senior Debt Securities, Section 501(5) of the
Senior Indenture, and in the case of Subordinated Debt Securities, Section
503(D) of the Subordinated Indenture (Section 1006 of the Indentures containing
the covenant to maintain properties, Section 1007 of the Indentures containing
the covenant to pay taxes and other claims, Section 1008 of the Senior Indenture
containing the restrictions described under "Restrictions on Certain
Dispositions of Major Constituent Banks", Section 1009 of the Senior Indenture
containing the restrictions described under "Restriction on Liens on Voting
Stock of Major Constituent Banks" and Sections 501(4) and 501(5) of the Senior
Indenture and Sections 503(C) and 503(D) of the Subordinated Indenture
containing the provisions described under "Defaults" relating to covenant
defaults and cross-defaults, respectively) and, in the case of Subordinated Debt
Securities, the provisions described under "Subordination of Subordinated Debt
Securities" ("covenant defeasance"), upon the deposit with the Senior Trustee or
Subordinated Trustee (or other qualifying trustee), in trust for such purpose,
of money, and/or U.S. Government Obligations which through the payment of
principal and interest in accordance with their terms will provide money, in an
amount sufficient, without reinvestment, to pay the principal of (and premium,
if any) and interest on such Debt Securities to maturity or redemption, as the
case may be, and any mandatory sinking fund or analogous payments thereon. As a
condition to defeasance or covenant defeasance, the Company must deliver to the
Senior Trustee or Subordinated Trustee an Opinion of Counsel (as specified in
the Applicable Indenture) to the effect that the Holders of such Debt Securities
will not recognize income, gain or loss for Federal income tax purposes as a
result of such defeasance or covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance or covenant defeasance had not
occurred. Such opinion, in the case of defeasance under clause (A) above, must
refer to and be based upon a ruling of the Internal Revenue Service issued to
the Company or published as a revenue ruling or upon a change in applicable
Federal income tax law, in any such case after the date of the Applicable
Indenture.
Under current Federal income tax law, defeasance would likely be treated
as a taxable exchange of Debt Securities to be defeased for interests in the
defeasance trust. As a consequence a holder would recognize gain or loss equal
to the difference between the holder's cost or other tax basis for such Debt
Securities and the value of the holder's proportionate interest in the
defeasance trust, and thereafter would be required to include in income a
proportionate share of the income, gain and loss of the defeasance trust. Under
current Federal income tax law, covenant defeasance would ordinarily not be
treated as a taxable exchange of such Debt Securities. Purchasers of such Debt
Securities should consult their own advisors with respect to the tax
consequences to them of such defeasance and covenant defeasance, including the
applicability and effect of tax laws other than the Federal income tax law.
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<PAGE>
The Company may exercise its defeasance option with respect to such Debt
Securities notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its defeasance option, payment of such Debt Securities
may not be accelerated because of an Event of Default. If the Company exercises
its covenant defeasance option, payment of such Debt Securities may not be
accelerated by reference to the covenants noted under clause (B) above.
However, if such an acceleration were to occur, the realizable value at the
acceleration date of the money and U.S. Government Obligations in the defeasance
trust could be less than the principal and interest then due on such Debt
Securities, in that the required deposit in the defeasance trust is based upon
scheduled cash flows rather than market value, which will vary depending upon
interest rates and other factors. (Article 13 and Article 14 of the Senior
Indenture and the Subordinated Indenture, respectively).
The Prospectus Supplement may further describe the provisions, if any,
applicable to defeasance or covenant defeasance with respect to the Debt
Securities of a particular series.
Default
The Senior Indenture
--------------------
The following are Events of Default under the Senior Indenture with
respect to Senior Debt Securities of any series: (1) failure to pay principal
of or premium, if any, on any Debt Securities of that series when due; (2)
failure to pay any interest on any Senior Debt Securities of that series, when
due, continued for 30 days; (3) failure to deposit any sinking fund payment,
when due, in respect of any Senior Debt Securities of that series; (4) failure
to perform any other covenant of the Company in the Senior Indenture (other than
a covenant included in the Senior Indenture solely for the benefit of series of
Senior Debt Securities other than that series), continued for 60 days after
written notice as provided in the Senior Indenture; (5) failure to pay when due
the principal of or the acceleration of any indebtedness for borrowed money by
the Company or any Major Constituent Bank, in any individual instance or in the
aggregate in the principal amount in excess of $1,000,000, if such indebtedness
is not discharged or such acceleration is not annulled within 10 days after
written notice as provided in the Senior Indenture; (6) certain events in
bankruptcy, insolvency, or reorganization of the Company or any Major
Constituent Bank; and (7) any other Event of Default provided in any
supplemental indenture entered into with respect to Senior Debt Securities of a
particular series as described in the Prospectus Supplement. (Section 501)
If an Event of Default with respect to Senior Debt Securities of any
series shall occur and be continuing, either the Trustee or the Holders of at
least 25% in aggregate principal amount of the Outstanding Senior Debt
Securities of that series by notice as provided in the Indenture may declare the
principal amount to be due and payable immediately. At any time after a
declaration of acceleration with respect to Senior Debt Securities of any series
has been made, but before a judgment or decree for payment of money has been
obtained by the Trustee, the Holders of a majority in aggregate principal amount
of outstanding Senior
20
<PAGE>
Debt Securities of that series may, under certain circumstances, rescind and
annul such acceleration. (Sections 502 and 503)
The Subordinated Indenture
--------------------------
The Subordinated Indenture defines an Event of Default with respect to
any series of Subordinated Debt Securities as being certain events involving the
bankruptcy, insolvency or reorganization of the Company or any other Event of
Default provided with respect to Securities of any series. (Section 501) If
any Event of Default with respect to Subordinated Debt Securities of any series
at the time Outstanding occurs and is continuing, either the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Subordinated
Debt Securities of that series may declare the principal amount of all
Subordinated Debt Securities of that series to be due and payable immediately
(provided that no such declaration is required upon certain events of
bankruptcy, insolvency or reorganization), but upon certain conditions such
declaration may be annulled and past defaults (except, unless theretofore cured,
a default in payment of principal of (or premium, if any), or interest on the
Subordinated Debt Securities of that series and certain other specified
defaults) may be waived by the Holders of a majority in principal amount of the
Outstanding Subordinated Debt Securities of that series on behalf of the Holders
of all Subordinated Debt Securities of that series. (Sections 502 and 513)
The Subordinated Indenture does not provide for any right of
acceleration of the payment of principal of a series of Subordinated Debt
Securities upon a default in the payment of principal or interest or in the
performance of any covenant or agreement in the Subordinated Debt Securities of
the particular series or in the Subordinated Indenture. The Subordinated
Indenture defines a Default with respect to Subordinated Debt Securities of any
series as any one of the following events: (1) an Event of Default; (2) failure
to pay any interest on any Subordinated Debt Securities of that series, when
due, continued for 30 days; (3) failure to pay principal of (or premium, if
any), on any Subordinated Debt Securities of that series when due; (4) failure
to deposit any sinking fund payment, when due, in respect of any Subordinated
Debt Securities of that series; (5) failure to perform any other covenant of the
Company in the Subordinated Indenture (other than a covenant included in the
Subordinated Indenture solely for the benefit of a series of Subordinated Debt
Securities other than that series) continued for 60 days after written notice as
provided in the Subordinated Indenture; (6) failure to pay when due the
principal of or the acceleration on any indebtedness for borrowed money by the
Company or a Major Constituent Bank, in any individual instance or in the
aggregate in the principal amount in excess of $3,000,000, if such indebtedness
is not discharged or such acceleration is not annulled within 10 days after
written notice as provided in the Subordinated Indenture; and (7) any other
Default with respect to Subordinated Debt Securities of a particular series as
described in the Prospectus Supplement. In case a Default shall occur and be
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders by appropriate judicial proceeding as the
Trustee deems most effectual. (Section 503)
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The Senior and Subordinated Indentures
--------------------------------------
Reference is made to the Prospectus Supplement for the particular
provisions relating to acceleration of the Maturity of any portion of the
principal amount of a series of Debt Securities upon the occurrence of an Event
of Default and the continuation thereof.
Each Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the applicable
Indenture at the request or direction of any of the Holders unless such Holders
shall have offered to the Trustee reasonable indemnity. (Section 603) Subject
to such provisions for the indemnification of the Trustee, the Holders of a
majority in aggregate principal amount of the Outstanding Debt Securities of any
series will 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 that
series. (Series 512)
Under each Indenture the Company is required to furnish annually to the
Trustee a statement as to the performance by the Company of certain of its
obligations under such Indenture and as to any default in such performance.
(Section 1004)
Modification of Indentures and Waiver of Conditions
Modifications and amendments of each Indenture may be made by the
Company and the Trustee with the consent of the Holders of 66-2/3% in aggregate
principal amount of the Outstanding Debt Securities of each series affected by
such modification or amendment, provided, however, that no such modification or
-------- -------
amendment may, without the consent of the Holder of each Outstanding Debt
Security of each series affected thereby, (1) change the stated maturity date of
the principal of, or any installment of principal of or interest on, any Debt
Securities; (2) reduce the principal amount of, the rate of interest on or any
premium payable upon the redemption of any Debt Securities; (3) reduce the
amount of the principal of any Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity thereof; (4)
change any Place of Payment where, or the coin or currency in which, payment of
principal of, or any premium or interest on, any Debt Securities may be made;
(5) impair the right to institute suit for the enforcement of any payment on or
with respect to any Debt Securities; or (6) in the case of the Subordinated
Indenture, modify the provisions thereof with respect to the subordination of
the Subordinated Debt Securities in a manner adverse to the Holders thereof; or
(7) 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 waiver of compliance with certain
provisions of the applicable Indenture or for waiver of certain defaults.
(Section 902)
Each Indenture provides that the Holders of 66-2/3% in aggregate
principal amount of the Outstanding Debt Securities of any series may, on behalf
of all Holders of Debt Securities of that series, waive, insofar as that series
is concerned, compliance by the Company with certain restrictive provisions of
the applicable Indenture with respect to the Debt Securities of such series.
(Section 1010 of the Senior Indenture, Section 1008 of the Subordinated
Indenture) The Holders of a majority in aggregate principal amount of the
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<PAGE>
Outstanding Debt Securities of any series may, on behalf of all Holders of Debt
Securities of that series, waive any past default under the applicable Indenture
with respect to the Debt Securities of such series except a default in the
payment of principal or any premium or interest with respect to the Debt
Securities of such series or in respect of a covenant or provision of the
applicable Indenture which cannot be modified or amended without the consent of
the Holders of each Outstanding Debt Security of such series. (Section 513)
Regarding the Trustee
The First National Bank of Chicago is the Senior Trustee under the
Senior Indenture and the Subordinated Trustee under the Subordinated Indenture.
Certain of the Company's subsidiaries now, or in the future may, maintain
deposit accounts and/or other banking relationships with the Trustee.
DESCRIPTION OF PREFERRED STOCK
The following statements are brief summaries of the material provisions
relating to the Company's Preferred Stock and are qualified in their entirety by
the provisions of the Company's Certificate of Incorporation and Bylaws which
have been filed with the Commission.
- Series A Preferred Stock. The Company's Certificate of Incorporation
authorizes the issuance of 400,000 shares of preferred stock with no par value.
On December 31, 1993, there were 13,396 shares of $3.15 Cumulative Convertible
Preferred Stock, Series "A" (the "Series A Preferred Stock") outstanding.
Holders of Series A Preferred Stock have the right to receive semi-annual
dividends at the annual rate of $3.15 per share. Such right is cumulative and
such dividends are payable before dividends may be paid on the Company's Common
Stock. Each shares of Series A Preferred Stock is convertible into 12.15 shares
of the Company's Common Stock. This conversion right is subject to adjustment
in certain events to protect against dilution of the conversion rights attached
to the Series A Preferred Stock. In the event of a liquidation, dissolution or
winding up of the Company, the holders of Series A Preferred Stock are entitled
to receive cash value of $52.50 per share plus unpaid accumulated preferred
dividends before any distribution is made to holders of the Company's Common
Stock. The Company may, at the option of the Board of Directors, redeem all or
any part of the outstanding Series A Preferred Stock at the redemption price of
$52.50 per share plus unpaid accumulated preferred dividends. The Series A
Preferred Stock is currently not publicly traded.
Holders of the Company's Series A Preferred Stock are entitled to one
vote per share on all matters submitted to a vote of stockholders. Voting for
the election of directors is not cumulative. If at any time four or more semi-
annual dividends on the Series A Preferred Stock are in default, in whole or in
part, the holders of the Series A Preferred Stock as a class will be entitled to
elect four directors and the holders of the Company's Common Stock will be
entitled to elect the remaining directors. Holders of any additional Preferred
Stock
23
<PAGE>
hereafter issued may have such full or limited voting rights as are provided by
the Board of Directors.
- Junior Series B Preferred Stock. 48,437 shares of the Company's
Preferred Stock are reserved under the Rights Agreement between the Company and
First Security Bank of Utah, N.A., in connection with the Rights associated with
the Company's Common Stock. (See "DESCRIPTION OF COMMON STOCK -- Rights Plan")
---
- Additional Series of Preferred Stock. The Board of Directors of the
------------------------------------
Company is authorized by the Certificate of Incorporation to provide, without
further shareholder action, for the issuance of one or more series of preferred
stock. The Board of Directors has the power to fix various terms with respect
to each series, including voting powers, designations, preferences and relative,
participating, optional or other special rights, qualifications, limitations,
restrictions and redemption, conversion or exchangeability provisions. Holders
of any series of preferred stock issued hereunder will have no pre-emptive
rights.
The applicable Prospectus Supplement will set forth the following
specific terms regarding the series of Preferred Stock offered thereby: (i) the
designation, number of shares and liquidation preference per share; (ii) the
initial public offering price; (iii) the dividend rate or rates; (iv) the index,
if any, upon which the amount of dividends, if any, is determined; (v) the dates
on which dividends, if any, will accrue and be payable and the designated record
dates for determining the holders entitled to such dividends; (vi) any
redemption or sinking fund provisions; (vii) any conversion or exchange
provisions; (viii) provisions for issuance of global securities; (ix) the
currency (which may be composite currency) in which payment of dividends, if
any, shall be payable if other than United States dollars; (x) voting rights;
and (xi) any additional terms, preferences or rights.
Under regulations adopted by the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board"), if the holders of shares of any
series of preferred stock of the Company become entitled to vote for the
election of directors because the Board of Directors of the Company has failed
to declare or pay dividends on such series, such series may then be deemed a
class of "voting securities" and a holder of 25 percent or more of such series
(or a holder of five percent or more if it otherwise exercises a "controlling
influence" over the Company) may then be subject to regulation as a bank holding
company in accordance with the Bank Holding Company Act of 1956, as amended. In
addition, at such time as such 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 five percent or more of such 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 ten percent or more of such
series.
The shares of Preferred Stock will, when issued, be fully paid and
nonassessable and will have no pre-emptive rights.
The transfer agent, registrar, dividend disbursing agent and redemption
agent for the Preferred Stock will be specified in the Prospectus Supplement
relating thereto.
24
<PAGE>
Because the Company is a holding company, its rights, the rights of its
creditors and of its stockholders, including the holders of any shares of
Preferred Stock, to participate in any distribution of assets of any subsidiary
upon the latter's liquidation or recapitalization will be subject to the prior
claims of the subsidiary's creditors, except to the extent that the Company may
itself be a creditor with recognized claims against the subsidiary. The
principal sources of the Company's revenues are dividends received from its
subsidiary Banks. Various statutory provisions limit the amount of dividends
the Company's subsidiary Banks and certain nonbank subsidiaries can pay without
regulatory approval, and various regulations can also restrict the payment of
dividends. Certain proposed regulations could further limit the ability of the
Company's subsidiary Banks to pay dividends to the Company, and federal statutes
limit the ability of subsidiary Banks to make loans to the Company. See
"Supervision and Regulation."
Dividends
---------
The holders of the Preferred Stock of each series will be entitled to
receive, when, as and if declared by the Board of Directors of the Company, out
of funds legally available therefor, cumulative or non-cumulative cash or other
dividends at such rate or rates and on such dates as will be set forth in the
Prospectus Supplement relating to such series. Such 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 the stock
books of the Company on such record dates as will be fixed by the Board of
Directors of the Company and specified in the Prospectus Supplement. If the
Board of Directors of the Company fails to declare a dividend payable on a
dividend payment date on any series of the Preferred Stock for which dividends
are noncumulative ("Noncumulative Preferred Stock"), then the holders of such
series of the Preferred Stock will have no right to receive a dividend in
respect of the dividend period ending on such dividend payment date, and the
Company will have no obligation to pay a dividend for such period, whether or
not dividends on such series are declared payable on any future dividend payment
dates.
No dividends may be declared in respect of any dividend period on any
other series or class of preferred stock ranking on a parity as to dividends
unless full cumulative dividends on all outstanding shares of each series of
Preferred Stock on which dividends are cumulative shall have been paid in full
or contemporaneously are declared and paid through the most recent dividend
payment date, unless otherwise indicated in the Prospectus Supplement. In the
event that full cumulative dividends on such Preferred Stock have not been
declared and paid or set apart when due, the Company may not declare or pay any
dividends on, or make other distributions on or make any payment on account of
the purchase, redemption, or other retirement, of its Common Stock or any other
stock of the Company ranking as to dividends or upon liquidations junior to such
Preferred Stock (other than, in the case of dividends or distributions,
dividends or distributions paid in shares of, or options, warrants or rights to
subscribe for or purchase shares of, Common Stock or such other junior ranking
stock), unless full cumulative dividends on such Preferred Stock are made or set
apart for payment, unless otherwise indicated in the Prospectus Supplement.
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<PAGE>
Redemption
----------
The shares of any series of Preferred Stock may be redeemable at the
option of the Company and may be subject to mandatory redemption pursuant to a
sinking fund or otherwise, in each case upon the terms, on the date or dates and
at the redemption price or prices set forth in the Prospectus Supplement related
to such series. If fewer than all shares of Preferred Stock are to be redeemed,
the shares to be redeemed shall be selected by the Company pro rata or by lot,
or by any other method determined by the Board of Directors to be equitable.
Under regulations of the Federal Reserve Board, any perpetual preferred stock
redeemable at the option of the Company may qualify as Tier 1 or Tier 2 capital
only if the redemption is subject to prior approval of the Federal Reserve
Board. Therefore, any redemption of Preferred Stock at the option of the
Company will require the prior approval of the Federal Reserve Board in order
for the Preferred Stock to qualify as capital for bank regulatory purposes.
If any dividends on shares of any series of Preferred Stock are in
arrears, no shares of Common Stock or shares of capital stock ranking junior to
or on parity with the Preferred Stock shall be redeemed and no shares of such
series of Preferred Stock shall be redeemed unless all outstanding shares of
such series are simultaneously redeemed, and the Company shall not purchase or
otherwise acquire any shares of such series; provided, however, that the
foregoing shall not prevent the purchase or acquisition of shares of such series
pursuant to a purchase or exchange offer made on the same terms to holders of
all outstanding shares of such series.
Notice of redemption shall be given by mailing to each record holder of
the shares to be redeemed, not less than 40 days nor more than 70 days prior to
the date fixed for the redemption thereof, to the respective addresses of such
holders as the same shall appear on the Company's stock books. Each such notice
shall state: (i) the redemption date; (ii) the number of shares and series of
the Preferred Stock to be redeemed; (iii) the redemption price and the manner in
which such redemption price is to be paid and delivered; (iv) the place or
places where certificates for such shares of Preferred Stock are to be
surrendered for payment of the redemption price; and (v) that dividends on the
shares to be redeemed will cease to accrue on such redemption date. If fewer
than all shares of any series of the Preferred Stock held by any holder are to
be redeemed, the notice mailed to such holder shall also specify the number of
shares to be redeemed from such holder.
If notice of redemption has been given, from and after the redemption
date for the shares of the series of the Preferred Stock called for redemption
(unless default shall have occurred by the Company in providing money for the
payment of the redemption price of the shares so called for redemption),
dividends on the shares of Preferred Stock so called for redemption will cease
to accrue, any right to convert the shares of Preferred Stock will terminate,
such shares will no longer be deemed to be outstanding, and all rights of the
holders thereof as stockholders of the Company (except the right to receive the
redemption price) will cease. Upon surrender in accordance with such notice of
the certificates representing any shares so redeemed (properly endorsed or
assigned for transfer, if the Board of Directors of the Company will so require
and the notice shall so state), the redemption price set forth above will be
paid out of funds provided by the Company. If fewer than all of the
26
<PAGE>
shares represented by any such certificate are redeemed, a new certificate will
be issued representing the unredeemed shares without cost to the holder thereof.
Liquidation Preference
----------------------
Upon any liquidation, dissolution or winding up of the Company, the
holders of shares of each series of Preferred Stock shall be entitled to receive
out of the assets of the Company available for distribution to stockholders,
before any distribution of assets is made to or set apart for the holders of
Common Stock or of any other shares of stock of the Company ranking as to such a
distribution junior to the shares of such series, with respect to the Preferred
Stock, an amount described in the Prospectus Supplement relating to such series
of Preferred Stock. If, in any case of any such liquidation, dissolution or
winding up of the Company, the assets of the Company or the proceeds thereof
shall be insufficient to pay in full the amounts payable with respect to shares
of each series of Preferred Stock, and any other shares of stock of the Company
ranking as to any such distribution on a parity therewith, the holders of shares
of such series of Preferred Stock and of such other shares will share ratably in
any such distribution of assets of the Company in proportion to the full
respective preferential amounts to which they are entitled. After payment to
the holders of shares of such series of Preferred Stock of the full preferential
amounts to which they are entitled, the holders of shares of such series of
Preferred Stock will not be entitled to any further participation in any
distribution of assets by the Company, unless otherwise provided in the
Prospectus Supplement. A consolidation or merger of the Company with one or
more corporations shall not be deemed to be a liquidation, dissolution or
winding up of the Company.
The terms, if any, on which shares of any series of Preferred Stock are
convertible into or exchangeable for Debt Securities or Common Stock will be set
forth in the Prospectus Supplement relating thereto. Such terms may include
provisions for conversion or exchange, either mandatory, at the option of the
holder, or at the option of the Company, in which the number of shares of Common
Stock to be received by the holders of Preferred Stock would be calculated
according to the market price of Common Stock as of a time stated in the
Prospectus Supplement.
DESCRIPTION OF COMMON STOCK
The following description of the Common Stock sets forth certain
general terms and provisions of the Common Stock to which any Prospectus
Supplement may relate, including a Prospectus Supplement providing that Common
Stock will be issuable in conversion of or exchange for Debt Securities or
Preferred Stock issued by the Company. The statements below describing the
Common Stock are in general terms and are in all respects subject to and
qualified in their entirety by reference to the applicable provisions of the
Company's Certificate of Incorporation and By-laws.
27
<PAGE>
General
-------
The Company is currently authorized to issue 150,000,000 shares of
Common Stock with a par value of $1.25 per share. As of December 31, 1993,
there were outstanding 48,436,565 shares (net of shares held as Treasury Stock)
of the Company's Common Stock. At such date, there were an additional 416,350
shares reserved for issuance under the Company's Comprehensive Management
Incentive Plan as stock bonuses and other awards; 352,670 shares reserved for
issuance under the Company's Dividend Reinvestment Plan; 162,761 shares reserved
for issuance upon the conversion of the Company's Series A Preferred Stock, and
2,532,599 shares reserved for issuance upon exercise of outstanding stock
options.
The Company's Common Stock has no pre-emptive or conversion rights.
The Company's Common Stock is not subject to redemption by the Company,
and there is no restriction on the repurchase by the Company of shares of the
Company's Common Stock except for certain regulatory limits.
Voting
------
The holders of the Company's Common Stock are entitled to voting rights
for the election of directors and for other purposes, subject to the voting
rights of the holders of Preferred Stock conferred by law and to the specific
voting rights granted to each series of Preferred Stock and to voting rights
which may in the future be granted to subsequently created series of Preferred
Stock.
Dividends
---------
Dividends will be determined by the Company's Board of Directors in
light of circumstances existing at the time, including the earnings and
financial condition of the Company, and there is no assurance that dividends
will continue to be paid at current levels. No material restrictions have been
imposed on the Company's ability to pay dividends from its earned surplus by
bank regulations or applicable law. As of December 31, 1993, approximately
$659.92 million could be applied to dividend payments to its shareholders and
certain other payments. Payment of dividends on the Company's Common Stock is
also subject to the prior rights of the Company's outstanding Preferred Stock.
Rights Plan
-----------
As of August 28, 1989, the Company adopted a Shareholder Rights
Agreement (the "Plan") and the Board of Directors of the Company on that date
(a) declared a dividend of one "Right" for each share of the Company's Common
Stock held of record as of the close of business on September 8, 1989, and (b)
authorized the issuance of one Right in respect of each share of the Company's
Common Stock issued after September 8, 1989 and prior to the occurrence of
certain events described in the Plan, primarily involving the acquisition of
target levels of the Company's shares by persons not then holding such amounts.
Each Right entitles the registered holder to purchase from the Company a unit
consisting of one-thousandth of a share of Junior Series B Preferred Stock at a
purchase price of $44.44
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<PAGE>
per unit. The Rights are attached to all shares of the Company's Common Stock
that were outstanding on September 8, 1989 or have been issued since that date,
and no separate Rights Certificates have been or will be distributed until the
occurrence of certain events described in the Rights Agreement. Until the
occurrence of such events, no Right may be exercised or traded separately from
the Company's Common Stock. Following separation, the Rights may, depending
upon the occurrence of certain events described in the Rights Agreement, entitle
the holders thereof to either purchase or receive additional shares of the
Company's Common Stock. The Rights will expire at the close of business on
August 28, 1999, unless earlier redeemed by the Company, which may be done at
$0.01 per Right, in accordance with the terms of the Plan.
The Plan is designed to protect the Company's stockholders' interests in
the event of an unsolicited attempt to acquire the Company, including a gradual
accumulation of shares in the open market. The Company believes that the Plan
provides protection against a partial or two-tier tender offer that does not
treat all stockholders equally and against other coercive takeover tactics which
could impair the Company's Board of Directors' ability to represent the
Company's stockholders fully. Management believes that the Rights should also
deter any attempt by a controlling stockholder to take advantage of the Company
through self-dealing transactions. The Plan is not intended to prevent a
takeover of the Company. Issuing the Rights has no dilutive effect, does not
affect reported earnings per share, and does not change the way in which the
Company's shares are traded. However, the exercise of Rights by some but not
all of the Company's stockholders would have a dilutive effect on nonexercising
stockholders. Moreover, some may argue that the Plan has the potential for
"entrenching" current management by allowing current voting stockholders to
increase their voting shares, thus making a tender offer more difficult and
costly.
Supermajority Vote Requirement
------------------------------
The Company's Certificate of Incorporation provides that, in general, an
affirmative vote of not less than 80% of the outstanding shares of the Company's
Common Stock is required to approve or authorize certain major corporate
transactions involving the Company and holders of more than 15% of the Company's
Common Stock (including certain mergers, substantial dispositions of assets,
liquidation or dissolution, or recapitalization). The 80% vote is not required
in some such circumstances, including certain transactions which have been
approved in advance by a majority of the Board of Directors, or where holders of
the Company's Common Stock receive a price per share that satisfies the fairness
criteria set forth in the Certificate of Incorporation.
Section 203 of the Delaware General Corporation Law
Section 203 ("Section 203") of the Delaware General Corporation Law (the
"DGCL") applies to Delaware corporations with a class of voting stock listed on
a national securities exchange, authorized for quotation on an inter-dealer
quotation system or held of record by 2,000 or more persons. In general,
Section 203 prevents an "interested stockholder" (defined generally as any
person owning, or who is an affiliate or associate of the corporation and has
owned in the preceding three years, 15% or more of a corporation's outstanding
voting stock and the affiliates and associates of such person) from engaging in
a "business combination" (as defined) with a Delaware corporation for three
years following
29
<PAGE>
the date such person became an interested stockholder, unless (i) before such
person became an interested stockholder, the board of directors of the
corporation approved either the business combination or the transaction in which
the interested stockholder became an interested stockholder; (ii) upon
consummation of the transaction that resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least 85% of the
voting stock of the corporation outstanding at the time the transaction
commenced (excluding stock held by directors who are also officers of the
corporation and by employee stock plans that do not provide employees with the
right to determine confidentially whether shares held subject to the plan will
be tendered in a tender or exchange offer); or (iii) on or subsequent to the
date such person became an interested stockholder, the business combination is
approved by the board of directors of the corporation and authorized at a
meeting of stockholders by the affirmative vote of the holders of two-thirds of
the outstanding voting stock of the corporation not owned by the interested
stockholder. Under Section 203, the restrictions described above also do not
apply to certain business combinations proposed by an interested stockholder
following the announcement or notification of one of certain extraordinary
transactions involving the corporation and a person who had not been an
interested stockholder during the previous three years or who became an
interested stockholder with the approval of a majority of the corporation's
directors.
Section 203 could have the effect of delaying, deferring or preventing a
change of control of the Company.
Limitation of Directors' Liability
The DGCL authorizes corporations to limit or eliminate the personal
liability of directors, to the corporation and its stockholders, for monetary
damages in connection with the breach of a director's fiduciary duty of care.
The duty of care requires that, when acting on behalf of the corporation,
directors must exercise an informed business judgment based on all material
information reasonably available to them. Absent the limitation authorized by
the Delaware statute, directors could be accountable to corporations and their
stockholders for monetary damages for conduct that does not satisfy such duty of
care. Although the statute does not change a director's duty of care, it
enables corporations to limit available relief to equitable remedies such as
injunction or rescission. The Company's Certificate of Incorporation limits the
liability of the Company's directors to the Company or its stockholders to the
fullest extent permitted by the Delaware statute as in effect from time to time.
Specifically, directors of the Company will not be personally liable for
monetary damages for breach of a director's fiduciary duty as a director, except
for liability (i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
unlawful payments of dividends or unlawful stock repurchases or redemptions as
provided in Section 174 of the DGCL or (iv) for any transaction from which the
director derived an improper personal benefit.
The inclusion of this provision in the Certificate of Incorporation may
have the effect of reducing the likelihood of derivative litigation against
directors and may discourage or deter stockholders or management from bringing a
lawsuit against directors for breach of their duty of care, even though such an
action, if successful, might otherwise have benefitted the Company and its
stockholders. This provision does not affect a director's responsibilities
30
<PAGE>
under certain other laws such as the federal securities laws or state or federal
environmental laws.
Officer and Director Indemnification
The Company's Bylaws require indemnification of the Company's directors
and executive officers to the full extent permitted by the DGCL, except in
connection with an action initiated by such officer or director or in an action
against the Company, its directors, officers, employees or agents, unless (i)
such indemnification is expressly required by law, (ii) the proceeding in
question was authorized by the Board of Directors or (iii) such indemnification
is otherwise authorized by the DGCL. The Company's Bylaws provide that the
Company shall have the power, but shall not be required, to indemnify its other
officers, employees and agents as set forth in the DGCL.
The Company provides liability insurance for its officers and directors
for certain losses arising from claims or charges which may be made against them
while acting in their capacities as directors or officers of the Company.
DESCRIPTION OF COMMON STOCK WARRANTS
The Company may issue Common Stock Warrants for the purchase of a
particular series of Common Stock. The Common Stock Warrants are to be issued
under warrant agreements (each a "Common Stock Warrant Agreement") to be entered
into between the Company and First Security Bank, Utah, N.A., as warrant agent
(the "Common Stock Warrant Agent"), all as set forth in the Prospectus
Supplement relating to the particular issue of Common Stock Warrants (the
"Offered Common Stock Warrants"). A copy of the Common Stock Warrant Agreement,
including the form of common stock warrant certificate (the "Common Stock
Warrant Certificate") representing the Common Stock Warrants, substantially in
the form in which it will be executed, is filed as an exhibit to the
Registration Statement. The following summaries of certain provisions of the
Common Stock Warrant Agreement and Common Stock 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 Common Stock Warrant Agreement and
the Common Stock Warrant Certificates, respectively, including the definitions
therein of certain terms.
General
If Common Stock Warrants are offered, the Prospectus Supplement will
describe the terms of the Offered Common Stock Warrants, and the Common Stock
Warrant Agreement relating to the Offered Common Stock Warrants and the Common
Stock Warrant Certificates representing the Offered Common Stock Warrants
including the following:
(i) the number of shares of Common Stock purchasable upon
exercise of Common Stock Warrants and the price at which such number of
shares of Common Stock may be purchased upon such exercise;
31
<PAGE>
(ii) the date on which the right to exercise such Common Stock
Warrants shall commence and the date (the "Expiration Date") on which
such right shall expire;
(iii) United States Federal income tax consequences applicable to
such Common Stock Warrants; and
(iv) any other terms of such Common Stock Warrants.
Common Stock Warrants for the purchase of Common Stock will be offered
and exercisable for U.S. dollars only. Common Stock Warrants will be issued in
registered form only. The exercise price for Common Stock Warrants will be
subject to adjustment in accordance with the applicable Prospectus Supplement.
Exercise of Common Stock Warrants
Each Common Stock Warrant will entitle the holder to purchase for cash
such number of shares (as applicable) of Common Stock, at such exercise price as
shall in each case be set forth in, or calculable from, the Prospectus
Supplement relating to the Offered Common Stock Warrants, which exercise price
may be subject to adjustment upon the occurrence of certain events as set forth
in such Prospectus Supplement. Offered Common Stock Warrants may be exercised
at any time up to the close of business of the Expiration Date set forth in the
Prospectus Supplement relating to the Offered Common Stock Warrants. After the
close of business on the Expiration Date (or such later date to which such
Expiration Date may be extended by the Company), unexercised Common Stock
Warrants will become void. The place or places where, and the manner in which,
Common Stock Warrants may be exercised shall be specified in the Prospectus
Supplement relating to such Common Stock Warrants.
Prior to the exercise of any Common Stock Warrants to purchase Common
Stock, holders of such Common Stock Warrants will not have any rights of holders
of the Common Stock purchasable upon such exercise, including the right to
receive payments of dividends, if any, on the Common Stock purchasable upon such
exercise or to exercise any applicable right to vote.
PLAN OF DISTRIBUTION
The Company may sell the Securities (i) through agents, (ii) through
underwriters, (iii) through dealers and (iv) directly to purchasers.
Securities may be offered and sold through agents designated by the
Company from time to time. Any such agent involved in the offer or sale of the
Securities will be named, and any commissions payable by the Company to such
agent will be set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment. Any such agent may be deemed
to be an underwriter, as that term is defined in the Securities Act of 1933,
32
<PAGE>
as amended, of the Securities so offered and sold. Agents may be entitled under
agreements which may be entered into with the Company to indemnification by the
Company against certain liabilities, including liabilities under the Securities
Act of 1933, as amended.
If an underwriter or underwriters are utilized in the sale of the
Offered Securities, the Company will execute an underwriting agreement with such
underwriter or underwriters at the time an agreement for such sale is reached,
and the names of the specific managing underwriter or underwriters, as well as
any other underwriters, and the terms of the transaction, including compensation
of the underwriters and dealers, if any, will be set forth in the Prospectus
Supplement which will be used by the underwriters to make resales of the
Securities. Underwriters will acquire Securities for their own account and may
resell such Securities from time to time in one or more transactions, including
negotiated transactions, at fixed public offering prices or at varying prices
determined at the time of sale. Securities may be offered to the public either
through underwriting syndicates represented by managing underwriters, or
directly by the managing underwriters. The underwriters may be entitled, under
the relevant underwriting agreement, to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act of 1933, as
amended. If an underwriter is utilized in the sale of the Securities, the
underwriting agreement will provide that the obligations of the underwriter is
subject to certain conditions precedent and that the underwriter with respect to
a sale of Securities will be obligated to purchase all such Securities if any
are purchased.
If a dealer is utilized in the sale of the Securities, the Company will
sell such Securities to the dealer, as principal. The dealer may then resell
such Securities to the public at varying prices to be determined by such dealer
at the time of resale. Any such dealer may be deemed to be an underwriter, as
such term is defined in the Securities Act of 1933, as amended, of the
Securities so offered and sold. Dealers may be entitled, under agreements which
may be entered into with the Company, to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act of 1933, as
amended. The name of the dealer and the terms of the transaction will be set
forth in the Prospectus Supplement relating thereto.
Offers to purchase Securities may be solicited directly by the Company
and sales thereof may be made by the Company directly to institutional investors
or others, who may be deemed to be underwriters within the meaning of the
Securities Act of 1933, as amended, with respect to any sale thereof. The terms
of any such sales will be described in the Prospectus Supplement relating
thereto.
If so indicated in the Prospectus Supplement, the Company will authorize
agents and underwriters to solicit offers by certain institutions to purchase
Securities from the Company at the public offering price set forth in the
Prospectus Supplement pursuant to Delayed Delivery Contracts ("Contracts")
providing for payment and delivery on the date stated in the Prospectus
Supplement. Each Contract will be for an amount not less than, and, unless the
Company otherwise agrees, the aggregate principal amount of Securities sold
pursuant to Contracts shall be not less nor more than, the respective amounts
stated in the Prospectus Supplement. Institutions with whom Contracts, when
authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment
33
<PAGE>
companies, educational and charitable institutions and other institutions but
shall in all cases be subject to the approval of the Company.
Contracts will not be subject to any conditions except that any related
sale of Securities to underwriters shall have occurred and the purchase by an
institution of the Securities covered by its Contract shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United States
to which such institution is subject. A commission indicated in the Prospectus
Supplement will be paid to underwriters and agents soliciting purchases of
Offered Securities pursuant to Contracts accepted by the Company.
The place and time of delivery of the Securities are set forth in the
accompanying Prospectus Supplement.
The offer and sale of the Securities by any affiliate of the Company
will comply with the requirements of Schedule E of the By-laws of the National
Association of Securities Dealers, Inc. regarding underwriting of securities of
an affiliate.
Certain of the underwriters or agents and their associates may be
customers of, engage in transactions with, and perform services for, the Company
in the ordinary course of business.
EXPERTS
The consolidated financial statements as of December 31, 1992 and 1991,
and for each of the three years in the period ended December 31, 1992
incorporated in this Prospectus by reference from the Company's Annual Report on
Form 10-K have been audited by Deloitte & Touche, independent auditors, as
stated in their report, which is incorporated herein by reference, and have been
so incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
VALIDITY OF SECURITIES
The validity of the Securities offered hereby will be passed upon for
the Company by Ray, Quinney & Nebeker, 79 South Main Street, Salt Lake City,
Utah 84111; and for any underwriters by Sullivan & Cromwell, 444 South Flower
Street, Los Angeles, California 90071. Alonzo W. Watson and Brad D. Hardy, both
shareholders and directors of Ray, Quinney & Nebeker, are also officers of the
Company. As of December 31, 1993, Ray, Quinney & Nebeker attorneys, together
with their immediate families, beneficially owned less than 4% of the then
outstanding Common Stock of the Company. From time to time, Sullivan & Cromwell
has performed legal services for the Company.
34
<PAGE>
================================================================================
No dealer, salesman or other person has been authorized to give any
information or to make any representations other than those contained or
incorporated by reference in this Prospectus Supplement or the Prospectus, and
if given or made, such information or representations must not be relied upon
as having been authorized. Neither the delivery of this Prospectus Supplement
or the Prospectus, nor any sale made hereunder and thereunder, shall under any
circumstances create an implication that there has been no change in the
affairs of First Security Corporation since the date hereof or thereof. This
Prospectus Supplement and the Prospectus do not constitute an offer or
solicitation by anyone in any jurisdiction in which such offer or solicitation
is not authorized or in which the person making such offer or solicitation is
not qualified to do so or to anyone to whom it is unlawful to make such offer
or solicitation.
----------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Available Information................ 2
Incorporation of Certain
Documents by Reference............. 2
First Security Corporation........... 3
Use of Proceeds...................... 12
Description of Debt Securities....... 12
Description of Preferred Stock....... 22
Description of Common Stock.......... 26
Description of Common
Stock Warrants..................... 29
Plan of Distribution................. 30
Experts.............................. 32
Validity of Securities............... 32
</TABLE>
================================================================================
================================================================================
[LOGO OF FIRST SECURITY CORPORATION APPEARS HERE]
$ 300,000,000
PROSPECTUS
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
<TABLE>
<S> <C>
Securities and Exchange Commission
Registration Fee................... $103,449
Rating Agency Fees.................. 50,000
Blue Sky Fees and Expenses.......... 22,500
Accounting Fees and Expenses........ 20,000
Legal Fees and Expenses............. 75,000
Printing and Engraving Expenses..... 40,000
Trustee's Fees and Expenses......... 15,000
Miscellaneous Expenses.............. 10,000
--------
$335,949
========
</TABLE>
All of the above items except the registration fee are estimated.
Item 15. Indemnification of Directors and Officers.
Indemnification. Delaware law provides that a director, employee,
---------------
officer or agent of a corporation may be indemnified against liability (other
than in an action by or in the right of the corporation) and other costs
incurred by such person in connection with such proceeding, provided such person
acted in good faith and in a manner such person reasonably believed to be in,
and not opposed to, the best interests of the corporation, and, with respect to
any criminal proceeding, had no reason to believe the conduct was unlawful. For
actions or suits brought by or in the name of the corporation, Delaware provides
that a director, employee, officer or agent of a corporation may be indemnified
against expenses incurred by such person in connection with such proceeding if
such person acted in good faith and in a manner such person reasonably believed
to be in and not opposed to, the best interests of the corporation, except that
if such person is adjudged to be liable to the corporation, such person can be
indemnified if and only to the extent that a court determines that despite the
adjudication of liability, in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses as the
court shall deem proper. On the other hand, if he/she prevails, indemnification
is mandatory. Under Delaware law, the determination of whether an officer or
director is entitled to indemnification (that is, whether or not the person has
met the statutory standard of conduct required for indemnification) is to be
made in certain circumstances by independent legal counsel. First Security
Corporation's Articles of Incorporation, as amended, provide for indemnification
of such persons to the full extent allowed by applicable law. The proposed
forms of Underwriting Agreement and Distribution Agreement, filed as Exhibits
1(a) and 1(b), respectively, to this Registration Statement provide for
indemnification of the Company's officers and directors
II-1
<PAGE>
who signed the Registration Statement against certain liabilities, including
liabilities under the Securities Act of 1933.
Director's Liability. Delaware allows a corporation to provide,
--------------------
in its articles or certificate of incorporation, a provision which limits or
eliminates the personal liability of a director to the corporation and its
shareholders or stockholders for monetary damages for such person's breach of
fiduciary duty, provided that such provision may not so limit a director's
liability (i) for a breach of his or her duty of loyalty to the corporation;
(ii) for acts or omissions not in good faith or involving intentional misconduct
or a knowing violation of law; (iii) for unlawful payments of dividends, certain
stock repurchases or redemptions; or (iv) for any transaction from which the
director derived an improper personal benefit.
These provisions have the effect of protecting a corporation's
directors against personal liability from breaches of their duty of care. First
Security Corporation, with the approval of its stockholders, amended its
Certificate of Incorporation to include such provisions in 1988.
Item 16. Exhibits.
(1)(a) Form of Underwriting Agreement.
(1)(b) Form of Agency Agreement for Medium-Term Notes (Incorporated
by reference to Exhibit 1 of the Company's Registration
Statement on Form S-3 (No. 33-38483)).
(3)(a) Certificate of Incorporation of the Company, as amended,
(Incorporated by reference to Exhibit 4(a) of the Company's
Registration Statement on Form S-3 (No. 33-38483)).
(3)(b) By-laws of the Company (Incorporated by reference to Exhibit
3(2) of the Company's Registration Statement on Form S-4 (No.
33-30045)).
(4)(a) Form of Indenture, dated as of March 1, 1994, between the
Registrant and The First National Bank of Chicago, as
Trustee, including form of Debt Security, with respect to the
Senior Debt Securities.
(4)(b) Form of Indenture, dated as of March 1, 1994, between the
Registrant and The First National Bank of Chicago, as
Trustee, including form of Debt Security, with respect to the
Subordinated Debt Securities.
(4)(c) Shareholder Rights Agreement, dated as of August 26, 1989,
between the Company and First Security Bank of Utah, N.A., as
Rights Agent (Incorporated by reference to Exhibits 4(c) and
4(d) of the Company's Registration Statement on Form S-3 (No.
33-42784)).
II-2
<PAGE>
(4)(d)* Form of Certificate of Designations with respect to the
Preferred Stock.
(4)(e) Form of specimen certificate representing the Common Stock
(Incorporated by reference to Exhibit 4(e) of the Company's
Registration Statement on Form S-3 (No. 33-42784)).
(4)(f)* Form of specimen certificate representing the Preferred
Stock.
(4)(g) Form of Warrant Agreement for Common Stock (including form of
Common Stock Warrant Certificate).
(5)* Opinion of Ray, Quinney & Nebeker.
(12)* Computation of Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges and Preferred Stock
Dividends.
(23)(a) Consent of Deloitte & Touche.
(23)(b) Consent of Ray, Quinney & Nebeker (included in Exhibit (5)).
(24) Powers of Attorney (included in signature pages).
(25) Statement of Eligibility and Qualification of The First
National Bank of Chicago under Trust Indenture Act of 1939 on
Form T-1.
- ----------------------------
* To be filed by amendment
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 of 1933;
(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; 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;
II-3
<PAGE>
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
The undersigned registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 and each filing of the registrant's
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Act of 1934 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described under Item 15
above, or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, 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.
II-4
<PAGE>
(2) For the purpose of determining any liability under the
Securities Act of 1933, 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.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirement of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Salt Lake City, Utah, on the 10th day of March, 1994.
FIRST SECURITY CORPORATION
By: /s/ Morgan J. Evans
---------------------------------------
Morgan J. Evans
President and Chief Operating Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
A. Robert Thorup, Esq. and Brad D. Hardy, Esq. and each of them, his true and
lawful attorney-in-fact and agent, with full powers of substitution, for him and
in his name, place and stead, in any and all capacities, to sign and to file any
and all amendments, including pre-and/or post-effective amendments to this
Registration Statement, with the Securities and Exchange Commission, granting to
said attorney-in-fact full power and authority to perform any other act on
behalf of the undersigned required to be done in connection therewith.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date or dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Spencer F. Eccles Chairman and Chief
- --------------------------------------- Executive Officer, Director March 10, 1994
Spencer F. Eccles
/s/ Morgan J. Evans President and Chief
- -------------------------------------- Operating Officer, Director March 10, 1994
Morgan J. Evans
/s/ Scott C. Ulbrich Executive Vice President March 10, 1994
- -------------------------------------- and Chief Financial Officer
Scott C. Ulbrich (Principal Financial and
Accounting Officer)
</TABLE>
II-6
<PAGE>
<TABLE>
<S> <C> <C>
/s/ James C Beardall Director March 10, 1994
- --------------------------------------
James C. Beardall
/s/ Rodney H. Brady Director March 10, 1994
- --------------------------------------
Rodney H. Brady
/s/ James E. Bruce Director March 10, 1994
- --------------------------------------
James E. Bruce
/s/ Director
- --------------------------------------
Thomas D. Dee II
/s/ Dr. David P. Gardner Director March 10, 1994
- --------------------------------------
Dr. David P. Gardner
/s/ Kendall D. Garff Director March 10, 1994
- --------------------------------------
Kendall D. Garff
/s/ U. Edwin Garrison Director March 10, 1994
- --------------------------------------
U. Edwin Garrison
/s/ David B. Haight Director March 10, 1994
- --------------------------------------
David B. Haight
/s/ Jay Dee Harris Director March 10, 1994
- --------------------------------------
Jay Dee Harris
/s/ Robert T. Heiner Director March 10, 1994
- --------------------------------------
Robert T. Heiner
/s/ Director
- --------------------------------------
Howard W. Hunter
/s/ Karen H. Huntsman Director March 10, 1994
- --------------------------------------
Karen H. Huntsman
</TABLE>
II-7
<PAGE>
<TABLE>
<S> <C> <C>
/s/ G. Frank Joklik Director March 10, 1994
- --------------------------------------
G. Frank Joklik
/s/ B. Z. Kastler Director March 10, 1994
- --------------------------------------
B. Z. Kastler
/s/ Joseph G. Maloof Director March 10, 1994
- --------------------------------------
Joseph G. Maloof
/s/ Scott S. Parker Director March 10, 1994
- --------------------------------------
Scott S. Parker
/s/ Dr. Arthur K. Smith Director March 10, 1994
- --------------------------------------
Dr. Arthur K. Smith
/s/ James L. Sorenson Director March 10, 1994
- --------------------------------------
James L. Sorenson
/s/ Harold J. Steele Director March 10, 1994
- --------------------------------------
Harold J. Steele
</TABLE>
II-8
<PAGE>
EXHIBIT INDEX
Exhibit Exhibit
Number Description
- ------- -----------
(1)(a) Form of Underwriting Agreement.
(1)(b) Form of Agency Agreement for Medium-Term Notes
(Incorporated by reference to Exhibit 1 of the Company's
Registration Statement on Form S-3 (No. 33-38483)).
(3)(a) Certificate of Incorporation of the Company, as amended, (Incorporated
by reference to Exhibit 4(a) of the Company's Registration Statement
on Form S-3 (No. 33-42784)).
(3)(b) By-laws of the Company (Incorporated by reference to
Exhibit 3(2) of the Company's Registration Statement on
Form S-4 (No. 33- 30045)).
(4)(a) Form of Indenture, dated as of March 1, 1994,
between the Registrant and The First National Bank of
Chicago, as Trustee, including form of Debt Security,
with respect to the Senior Debt Securities.
(4)(b) Form of Indenture, dated as of March 1, 1994,
between the Registrant and The First National Bank of
Chicago, as Trustee, including form of Debt Security,
with respect to the Subordinated Debt Securities.
(4)(c) Shareholder Rights Agreement, dated as of August 26,
1989, between the Company and First Security Bank of
Utah N.A. as Rights Agent (Incorporated by reference
to Exhibits 4(c) and 4(d) of the Company's Registration
Statement on Form S-3 (No. 33-42784)).
(4)(d)* Form of Certificate of Designations with respect to the
Preferred Stock.
(4)(e) Form of specimen certificate representing the Common
Stock (Incorporated by reference to Exhibit 4(e) of the
Company's Registration Statement on Form S-3
(No. 33-42784)).
(4)(f)* Form of specimen certificate representing the Preferred
Stocks.
<PAGE>
(4)(g) Form of Warrant Agreement for Common Stock (including
form of Common Stock Warrant Certificate).
(5)* Opinion of Ray, Quinney & Nebeker.
(12)* Computation of Ratios of Earnings to Fixed Charges and Earnings
to Combined Fixed Charges and Preferred Stock Dividends.
(23)(a) Consent of Deloitte & Touche.
(23)(b) Consent of Ray, Quinney & Nebeker (included in
Exhibit (5)).
(24) Powers of Attorney (included in signature pages).
(25) Statement of Eligibility and Qualification of The First
National Bank of Chicago under Trust Indenture Act of
1939 on Form T-1.
- --------------------------
* To be filed by exhibit
<PAGE>
APPENDIX EXPLAINING DIFFERENCES BETWEEN PAPER AND ELECTRONIC FILING
On the Prospectus Front Cover a Red and Burgundy First Security
Corporation Logo appears where indicated.
On the Prospectus Back Cover a Red and Burgundy First Security
Corporation Logo appears where indicated.
<PAGE>
Draft of March 3, 1994
EXHIBIT 1(a)
FORM OF UNDERWRITING AGREEMENT
FIRST SECURITY CORPORATION
[Insert Title of Securities]
UNDERWRITING AGREEMENT
----------------------
1. Introductory. First Security Corporation, a Delaware corporation
------------
("Company"), proposes to issue and sell from time to time certain [shares] of
its [common stock] [preferred stock] [common stock warrants] [debt securities]
registered under the registration statement referred to in Section 2(a)
("Registered Securities"). [The debt securities (the "Debt Securities") will
consist of unsecured debt securities (the "Senior Debt Securities") and
unsecured, subordinated debt securities (the "Subordinated Debt Securities").
The Senior Debt Securities will be issued under an indenture, dated as of
March 1, 1994 (the "Senior Indenture"), between the Company and The First
National Bank of Chicago, as Trustee. The Subordinated Debt Securities will be
issued under an Indenture, dated as of March 1, 1994 (the "Subordinated
Indenture"), between the Company and The First National Bank of Chicago, as
Trustee. The Senior Indenture and the Subordinated Indenture, as they may be
modified by the Trust Indenture Reform Act of 1990, are each referred to
herein as an "Indenture". The Debt Securities will be issued in one or more
series, which series may have varying designations, interest rates and times
of payment of any interest, maturities, redemption provisions and other terms,
with all such terms for any particular series of the Debt Securities being
determined at the time of the sale.] [The Preferred Stock will be issued
pursuant to a Certificate of Designations filed with the Delaware Secretary of
State.] [The common stock warrants will be issued pursuant to a Common Stock
Warrant Agreement, dated ________ __, 1994, between the Company and
________________, as Warrant Agent (the "Warrant Agreement").] [The Registered
Securities will, to the extent provided in the Terms Agreement referred to in
Section 3, be convertible at the option of the holder thereof into [shares of
the Company's Common Stock, par value $1.25 per share (the "Common Stock")]
[insert description of other securities into which convertible]. [The]
-------------------------------------------------------------
[Particular series of the] Registered Securities will be sold pursuant to a
Terms Agreement referred to in Section 3, for resale in accordance with terms
of offering determined at the time of sale.]
The Registered Securities involved in any such offering are
hereinafter referred to as the "Securities". The firm or firms which agree to
purchase the Securities are
<PAGE>
hereinafter referred to as the "Underwriters" of such Securities, and the
representative or representatives of the Underwriters, if any, specified in a
Terms Agreement referred to in Section 3 are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement does not
specify any representative of the Underwriters, the term "Representatives", as
used in this Agreement (other than in Sections 2(b), 5(c) and 6 and the second
sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company
---------------------------------------------
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. ___-________), including a
prospectus, relating to the Registered Securities has been filed with the
Securities and Exchange Commission ("Commission") and has become effective.
Such registration statement, as amended at the time of any Terms Agreement
referred to in Section 3, is hereinafter referred to as the "Registration
Statement", and the prospectus included in such Registration Statement, as
supplemented as contemplated by Section 3 to reflect the terms of the
Securities and the terms of offering thereof, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)")
under the Securities Act of 1933 ("Act"), including all material
incorporated by reference therein, is hereinafter referred to as the
"Prospectus".
(b) On the effective date of the registration statement relating to
the Registered Securities, such registration statement conformed in all
respects to the requirements of the Act[, the Trust Indenture Act of 1939
("Trust Indenture Act")] and the rules and regulations of the Commission
("Rules and Regulations"), and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; and on
the date of each Terms Agreement referred to in Section 3, at each Closing
Date referred to in Section 3 and at the time of filing of the Prospectus
pursuant to Rule 424(b), the Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act[, the Trust
Indenture Act] and the Rules and Regulations, and neither of such documents
will include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not mislead-
2
<PAGE>
ing, except that the foregoing does not apply to statements in or omissions
from any of such documents based upon written information furnished to the
Company by any Underwriter through the Representatives, if any,
specifically for use therein.
(c) The financial statements, and the related notes thereto, included
or incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates indicated and the
results of their operations and the changes in their consolidated cash
flows for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis, and the supporting schedules included or
incorporated by reference in the Registration Statement present fairly the
information required to be stated therein.
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change, or any development involving a material adverse
change, in or affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Prospectus; and except as set
forth or contemplated in the Prospectus neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether or not
in the ordinary course of business) material to the Company and its
subsidiaries taken as a whole.
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the state of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which it owns properties or leases properties or the
conduct of its business requires such qualification.
(f) Each of the Company's subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation, with corporate power and authority to
own its properties and conduct its
3
<PAGE>
business as described in the Prospectus, and has been duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which it owns properties or leases properties or the
conduct of its business requires such qualification, other than where the
failure to be so qualified or in good standing would not have a material
adverse effect on the Company and its subsidiaries taken as a whole; and
all the outstanding shares of capital stock of each subsidiary of the
Company have been duly authorized and validly issued, are fully-paid and
non-assessable, and (except in the case of foreign subsidiaries, for
directors' qualifying shares) are owned by the Company, directly or
indirectly, free and clear of all liens, encumbrances, security interests
and claims.
3. Purchase and Offering of Securities. The obligation of the
-----------------------------------
Underwriters to purchase the Securities will be evidenced by an exchange of
telegraphic or other written communications ("Terms Agreement") at the time the
Company determines to sell the Securities. Each Terms Agreement shall be
substantially in the form attached hereto as Annex I and will incorporate by
reference the provisions of this Agreement, except as otherwise provided
therein, and will specify the firm or firms which will be Underwriters, the
names of any Representatives, the [principal amount of] [number of] [shares of]
Securities to be purchased by each Underwriter, the purchase price to be paid by
the Underwriters, the nature of the funds to be delivered by the Underwriters
[and] [,] the public offering price, if any [if Debt Securities, insert --, and
-----------------------------
the terms of the Securities not already specified in the Indenture, including,
but not limited to, interest rate, if any, maturity, any redemption provisions
and any sinking fund requirements] [if Preferred Stock, insert --, and the terms
-----------------------------
of the Securities not already specified in the Certificate of Designations,
including, but not limited to, annual dividend rates, sinking fund provisions,
if any, and redemption provisions, if any] [if Warrants, insert --, and the
----------------------
terms of the Securities not already specified in the Warrant Agreement,
including, but not limited to, the type of securities issuable on exercise of
one Warrant, the Warrant exercise price, the date after which Warrants are
exercisable and the Warrant expiration date], and whether any of the Securities
may be sold to institutional investors pursuant to Delayed Delivery Contracts
(as defined below). Each Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time not later than
seven full business days thereafter as the Representatives and the Company agree
as the time for payment and delivery, being herein and in the Terms Agreement
referred to as the
4
<PAGE>
"Closing Date"), the place of delivery and payment and any details of the terms
of offering that should be reflected in the prospectus supplement relating to
the offering of the Securities. The obligations of the Underwriters to purchase
the Securities will be several and not joint. It is understood that the
Underwriters propose to offer the Securities for sale as set forth in the
Prospectus. The Securities delivered to the Underwriters on the Closing Date
will be in definitive fully registered form, in such denominations and
registered in such names as the Underwriters may request.
If any Terms Agreement provides for sales of Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex II attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date the
Company will pay, as compensation, to the Representatives for the accounts of
the Underwriters, the fee set forth in such Terms Agreement in respect of the
[principal amount of] [number of] [shares of] Securities to be sold pursuant to
Delayed Delivery Contracts ("Contract Securities"). The Underwriters will not
have any responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities will be deducted from the Securities to be
purchased by the several Underwriters and the [aggregate principal amount of]
[number of] [shares of] Securities to be purchased by each Underwriter will be
reduced pro rata in proportion to the [principal amount of] [number of] [shares
of] Securities set forth opposite each Underwriter's name in such Terms Agree-
ment, except to the extent that the Representatives determine that such
reduction shall be otherwise than pro rata and so advise the Company. The
Company will advise the Representatives not later than the business day prior to
the Closing Date of the principal amount of Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the
---------------------------------
several Underwriters that it will furnish to Sullivan & Cromwell, counsel for
the Underwriters, one signed copy of the registration statement relating to the
Registered Securities, including all exhibits, in the form it became effective
and of all amendments thereto and that, in connection with each offering of
Securities:
5
<PAGE>
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(2) (or, if applicable and if
consented to by the Representatives, subparagraph (5)) not later than the
second business day following the execution and delivery of the Terms
Agreement. The Company will advise you promptly of any such filing pursuant
to Rule 424(b).
(b) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus, and will afford the Representatives a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Company will
also advise the Representatives promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Registration Statement or
Prospectus to comply with the Act, the Company promptly will prepare and
file with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance.
Neither the Representatives' consent to, nor the Underwriters' delivery
of, any such amendment or supplement shall constitute a waiver of any of
the conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months after the
date of each Terms Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
registration statement relating to the Registered Securities, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such Terms
Agreement and (iii) the date of the
6
<PAGE>
Company's most recent Annual Report on Form 10-K filed with the Commission
prior to the date of such Terms Agreement, which will satisfy the
provisions of Section 11(a) of the Act.
(e) The Company will furnish to counsel for the Underwriters, one
signed copy of the Registration Statement, including all exhibits, relating
to the Securities [and any [shares of Common Stock] [insert other
------------
securities into which convertible] issuable upon conversion or exercise of
---------------------------------
the Securities] in the form in which it became effective and of all
amendments thereto and will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities
[and any [shares of Common Stock] [insert other securities into which
----------------------------------
convertible] issuable upon conversion or exercise of the Securities] for
-----------
sale and the determination of their eligibility for investment under the
laws of such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the
distribution.
(g) During the period of five years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as practicable
after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report or
definitive proxy statement of the Company filed with the Commission under
the Securities Exchange Act of 1934 or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as the
Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, including without limiting the
generality of the foregoing, all costs and expenses (i) incident to the
preparation, issuance, execution[, authentication] and delivery of the
Securities [and any [shares of Common Stock] [insert other securities into
which
7
<PAGE>
convertible] issuable upon conversion or exercise of the Securities][,
including any expenses of the Trustee], (ii) incident to the preparation,
printing and filing under the Securities Act of the Registration Statement,
the Prospectus and any preliminary prospectus (including in each case all
exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Securities [and any [shares of Common Stock] [insert
other securities into which convertible] issuable upon conversion or
exercise of the Securities] under the laws of such jurisdictions as the
Representatives may designate (including fees of counsel for the
Representatives and their disbursements), (iv) in connection with the
listing of the Securities on any stock exchange, (v) related to any filing
with the National Association of Securities Dealers, Inc., (vi) in
connection with the printing (including word processing and duplication
costs) and delivery of this Agreement, [the Indenture,] the Preliminary and
Supplemental Blue Sky Memoranda and any legal Investment Survey and the
furnishing to Underwriters and dealers of copies of the Registration
Statement and the Prospectus, including mailing and shipping, as herein
provided and (vii) payable to rating agencies in connection with the rating
of the Securities.
(i) For a period beginning at the time of execution of the Terms
Agreement and ending 30 days after the Closing Date, without the prior
consent of the Representatives, the Company will not offer, sell, contract
to sell or otherwise dispose of any of its [insert securities to be locked
------------------------------
up] which are substantially similar to the Securities.
--
[ (j) Insert if the Securities are convertible into Common Stock -- To
-------------------------------------------------------------
reserve and keep available at all times, free of preemptive rights, shares
of Common Stock for the purpose of enabling the Company to satisfy any
obligations to issue shares of Common Stock upon conversion of the
Securities.]
[ (k) Insert if required by the applicable Terms Agreement -- To use
-------------------------------------------------------
its best efforts to qualify the Securities [and shares of Common Stock
issuable upon conversion of the Securities] for trading as national market
securities on the NASDAQ National Market System or list the Securities on
such other exchange on which the Company's Common Stock is then listed.
8
<PAGE>
5. Conditions of the Obligations of the Underwriters. The
--------------------------------------------------
obligations of the several Underwriters to purchase and pay for the Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein as of the date hereof and the Closing Date, to the
accuracy of the statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions precedent:
(a) Subsequent to the signing of this Agreement, the Representatives
shall have received a letter, dated the date of delivery thereof, of
Deloitte & Touche confirming that they are independent public accountants
within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating in effect that:
(i) in their opinion, the financial statements and schedules
examined by them and included in the prospectus contained in the
registration statement relating to the Registered Securities, as
amended at the date of such letter, comply in form in all material
respects with the applicable accounting requirements of the Act, the
Securities and Exchange Act of 1934 (the "Exchange Act") and the
related published Rules and Regulations;
(ii) they have made a review of any unaudited financial statements
included in such prospectus in accordance with standards established
by the American Institute of Certified Public Accountants, as
indicated in their report or reports attached to such letter;
(iii) on the basis of the review referred to in (ii) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that the
unaudited financial statements, if any, included in such prospectus do
not comply in form in all material respects with the applicable
accounting requirements of the Act and the related published Rules and
Regulations or are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements included in such
prospectus; and
9
<PAGE>
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in such prospectus (in each case to the extent that such
dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material incorporated by
reference into such prospectus shall be deemed included in such prospectus
for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, shall be contemplated by the Commission as of
the Closing Date.
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any material adverse change, or any development
involving a material adverse change, in or affecting the general affairs,
business, prospects, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus, the
effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in
the Prospectus; (ii) any downgrading in the rating of any debt securities
[or preferred stock] of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act), or any public announcement that any such organization has
under sur-
10
<PAGE>
veillance or review its rating of any debt securities [or preferred stock]
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices
for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress,
any material adverse change in the financial markets or any other
substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters, including any
Representatives, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of Ray, Quinney & Nebeker, counsel for the Company, to the
effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which it owns properties or leases
properties or the conduct of its business requires such qualification;
(ii) Each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, with corporate
power and authority to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which it owns properties or leases properties or the
conduct of its business requires such qualification, other than where
the failure to be so qualified or in good standing would not have a
material adverse
11
<PAGE>
effect on the Company and its subsidiaries taken as a whole; and all
the outstanding shares of capital stock of each subsidiary of the
Company have been duly authorized and validly issued, are fully-paid
and non-assessable, and (except in the case of foreign subsidiaries,
for directors' qualifying shares) are owned by the Company, directly
or indirectly, free and clear of all liens, encumbrances, security
interests and claims.
[ (iii) Insert if Debt Securities -- The Indenture has been duly
----------------------------
authorized, executed and delivered by the Company and has been duly
qualified under the Trust Indenture Act; the Securities have been duly
authorized; the Securities other than any Contract Securities have
been duly executed, authenticated, issued and delivered; the Indenture
and the Securities other than any Contract Securities constitute, and
any Contract Securities, when executed, authenticated, issued and
delivered in the manner provided in the Indenture and sold pursuant to
Delayed Delivery Contracts, will constitute, valid and legally binding
obligations of the Company enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Securities other than any Contract Securities conform, and any
Contract Securities, when so issued and delivered and sold, will
conform, to the description thereof contained in the Prospectus;]
[ (__) Insert if Preferred Stock -- The Securities conform in all
----------------------------
material respects to the description thereof contained in the
Prospectus and have been duly authorized; and assuming the Securities
are paid for as provided herein, the Securities will be validly
issued, fully paid and nonassessable;] [The Company has an authorized
capitalization as set forth in the Prospectus, and all of the
outstanding shares of capital stock of the Company described therein
have been duly and validly authorized and issued and are fully paid
and nonassessable;]
[ (__) Insert if Common Stock -- [The Securities have been duly
-------------------------
authorized and, when issued and
12
<PAGE>
delivered to the Underwriters against payment therefore as provided
herein, will be validly issued and fully paid and nonassessable;]
[The Company has an authorized capitalization as set forth in the
Prospectus, and all of the outstanding shares of capital stock of the
Company described therein have been duly and validly authorized and
issued and are fully paid and nonassessable];]
[ (__) Insert if Warrants -- The Securities have been duly
---------------------
authorized and duly executed by the proper officers of the Company and
authenticated by the Warrant Agent under the Warrant Agreement and
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; [The Common Stock
initially issuable upon exercise thereof has been duly and validly
authorized and reserved for issuance upon such exercise, and such
shares, when issued upon such exercise in accordance with the terms of
the Warrant Agreement and at the price therein provided for, will be
duly authorized, validly issued, fully paid and nonassessable;] and
assuming due authorization, execution and delivery of the Warrant
Agreement by the Warrant Agent, the Warrant Agreement has been duly
authorized, executed and delivered by the Company and is a valid and
legally binding obligation of the Company enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
[ (iv) If Securities are convertible or exchangeable into Common
---------------------------------------------------------
Stock -- The shares of Common Stock issuable upon conversion of such
--------
Securities have been duly and validly authorized and reserved for
issuance upon such conversion, and, when issued and delivered upon
such conversion, will be duly and validly issued and will be fully
paid and non-assessable; the stockholders of the Company have no
preemptive rights with respect to such Common Stock issuable
13
<PAGE>
upon conversion of such Securities; and such shares of Common Stock
conform in all material respects to the description of the Common
Stock contained in the Prospectus;]
(v) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance or sale of the Securities by the Company, except such as have
been obtained and made under the Act and the Trust Indenture Act and
such as may be required under state securities laws;
(vi) (A) To the best of such counsel's knowledge, neither the
Company nor any of its subsidiaries is, or with the giving of notice
or lapse of time or both would be, in breach or violation of any of
the terms and provisions of, or in default under, its charter or by-
laws or any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which it or any of
them or any of their respective properties is bound, except for
violations and defaults which individually and in the aggregate are
not material to the Company and its subsidiaries taken as a whole or
to the holders of the Securities, (B) to the best of such counsel's
knowledge, the execution, delivery and performance of the [Indenture,]
[the Warrant Agreement,] the Terms Agreement (including the provisions
of this Agreement) and any Delayed Delivery Contracts, consummation of
any of the transactions therein contemplated, compliance with the
terms and provisions thereof by the Company and the issuance and sale
of the Securities will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument which is material to the business of the Company and to
which the Company or any subsidiary of the Company is a party or by
which the Company or any such subsidiary is bound or to which any of
the properties of the Company or any such subsidiary is subject and
(C) such action will not result in any violation of any provision of
the charter or by-
14
<PAGE>
laws of the Company or any such subsidiary, or any statute, rule or
regulation, or, to the best of such counsel's knowledge, any order of
any governmental agency or body or any court having jurisdiction over
the Company or any subsidiary of the Company or any of their
properties;
(vii) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein, and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration State-
ment or of any part thereof has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated under
the Act, and the registration statement relating to the Registered
Securities, as of its effective date, the Registration Statement and
the Prospectus, as of the date of the Terms Agreement and as of the
Closing Date, and any amendment or supplement thereto, as of its date,
complied as to form in all material respects with the requirements of
the Act[, the Trust Indenture Act] and the Rules and Regulations; such
counsel have no reason to believe that such registration statement, as
of its effective date, the Registration Statement or the Prospectus,
as of the date of the Terms Agreement and as of the Closing Date, or
any such amendment or supplement, as of its date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; the descriptions in the Registration Statement
and Prospectus of the Registered Securities and of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown; and
such counsel do not know of any legal or governmental proceedings
required to be described in the Prospectus which are not described as
required or of any contracts or documents of a character required to
be described in the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement which are not
described and filed as required; it being understood that such counsel
need express no opinion as to the financial statements or other
financial data contained
15
<PAGE>
in the Registration Statement or the Prospectus; and
(viii) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company.
(e) The Representatives shall have received from Sullivan & Cromwell,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of the Company, the validity of
the Securities, the Registration Statement, [the Indenture,] [the Warrant
Agreement,] the Prospectus and other related matters as they may require,
and the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(f) The Representatives shall have received a certificate, dated the
Closing Date, of any Vice-President who is a principal financial or
accounting officer of the Company in which such officer, to the best of his
knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true
and correct on and as of the Closing Date with the same effect as if made
on the Closing Date, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, that no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has been
issued and no proceedings for that purpose have been instituted and are
pending, or are contemplated by the Commission and that, subsequent to the
date of the most recent financial statements in the Prospectus, there has
been no material adverse change in the financial position or results of
operation of the Company and its subsidiaries except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(g) The Representatives shall have received a letter, dated the
Closing Date, of Deloitte & Touche, which reconfirms the matters set forth
in their letter delivered pursuant to subsection (a) of this Section and
states in effect that:
(i) in their opinion, any financial statements or schedules
examined by them and included in the Prospectus and not covered by
their letter
16
<PAGE>
delivered pursuant to subsection (a) of this Section comply in form
in all material respects with the applicable accounting requirements
of the Act and the related published Rules and Regulations;
(ii) they have made a review of any unaudited financial
statements included in the Prospectus and not covered by their letter
delivered pursuant to subsection (a) of this Section in accordance
with standards established by the American Institute of Certified
Public Accountants, as indicated in their report or reports attached
to such letter;
(iii) on the basis of the review referred to in (ii) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements, if any, included in
the Prospectus and not covered by their letter delivered pursuant
to subsection (a) of this Section do not comply in form in all
material respects with the applicable accounting requirements of
the Act and the related published Rules and Regulations or are
not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included in the Prospectus;
(B) the unaudited capsule information, if any, included in
the Prospectus does not agree with the amounts set forth in the
unaudited consolidated financial statements from which it was
derived or was not determined on a basis substantially
consistent with that of the audited financial statements included
in the Prospectus;
(C) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than five days prior to the Closing Date, there was any change in
the capital stock or any increase in short-term indebtedness or
long-
17
<PAGE>
term debt of the Company and consolidated subsidiaries or, at the
date of the latest available balance sheet read by such accoun-
tants, there was any decrease in consolidated total assets, total
deposits, reserves for loan losses or stockholders' equity or any
change in the reserve for loan losses or other real estate, as
compared with amounts shown on the latest balance sheet included
in the Prospectus; or
(D) for the period from the date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants there
were any decreases, as compared with the corresponding period of
the previous year, and with the period of corresponding length
ended the date of the latest income statement included in the
Prospectus, in consolidated net interest income, net interest
income after provision for loan losses, other income or in the
ratio of earnings to fixed charges or in the total or per share
amounts of income or net income;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
included in the Prospectus and not covered by their letter delivered
pursuant to subsection (a) of this Section (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such records
by analysis or computation) with the results obtained from inquiries,
a reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
18
<PAGE>
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus
for the purposes of this subsection.
The Company will furnish the Representatives with such con-formed copies of such
opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution. (a) The Company will indemnify
--------------------------------
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives, if any,
specifically for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or
19
<PAGE>
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives, if any, specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the contrary, (ii) the
indemnifying party has failed within a reasonable time to retain counsel
reasonably satisfactory to the indemnified party or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify any indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
20
<PAGE>
liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
21
<PAGE>
The Underwriters' obligations in this subsection (d) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters
-----------------------
default in their obligations to purchase Securities under the Terms Agreement
and the aggregate principal amount of the Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of the Securities, the Representatives may make
arrangements satisfactory to the Company for the purchase of such Securities by
other persons, including any of the Underwriters, but if no such arrangements
are made by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under this Agreement
and the Terms Agreement, to purchase the Securities that such defaulting
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of the Securities with respect to
which such default or defaults occur exceeds 10% of the total principal amount
of the Securities and arrangements satisfactory to the Representatives and the
Company for the purchase of such Securities by other persons are not made within
36 hours after such default, such Terms Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
as provided in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
The respective commitments of the several Underwriters for the purposes of this
Section shall be determined without regard to reduction in the respective
Underwriters' obligations to purchase the [principal amounts] [numbers of
shares] of the Securities set forth opposite their names in the Terms Agreement
as a result of Delayed Delivery Contracts entered into by the Company.
22
<PAGE>
The foregoing obligations and agreements set forth in this Section
will not apply if the Terms Agreement specifies that such obligations and
agreements will not apply.
8. Survival of Certain Representations and Obligations. The
---------------------------------------------------
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person and will
survive delivery of and payment for the Securities. If the Terms Agreement is
terminated pursuant to Section 7 or if for any reason the purchase of the
Securities by the Underwriters under the Terms Agreement is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 4 and the respective obligations of the Company and the
Underwriters pursuant to Section 6 shall remain in effect. If the purchase of
the Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 7 or the
occurrence of any event specified in clause (iii), (iv) or (v) of Section 5(c),
the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Securities.
9. Notices. All communications hereunder will be in writing and, if
-------
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their addresses furnished to the Company in writing for the purpose
of communications hereunder or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 61 South Main Street, 6th Floor,
Salt Lake City, Utah 84111, Attention: Scott C. Ulbrich, Chief Financial
Officer
10. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder.
11. Applicable Law. This Agreement and the Terms Agreement shall be
--------------
governed by, and construed in accordance with, the laws of the State of New
York.
23
<PAGE>
ANNEX I
FIRST SECURITY CORPORATION
[Insert title of securities]
TERMS AGREEMENT
[Date]
First Security Corporation
79 South Main Street
Salt Lake City, Utah 84111
Attention: Scott Ulbrich,
Chief Financial Officer
Dear Ladies and Gentlemen:
We offer to purchase, on and subject to the terms and conditions of
the Underwriting Agreement filed as an exhibit to the Company's registration
statement on Form S-3 (No. 33-_________), a copy of which is attached hereto
("Underwriting Agreement"), the following Securities ("Securities") on the
following terms:
[Insert if Debt Securities --
- -----------------------------
Title:
- ------
Aggregate principal amount to be purchased: $ .
- -------------------------------------------
Purchase price to Underwriters (include accrued interest and
- ------------------------------
amortization, if any): $ .
[Sinking fund provisions: [None] [ ].]
-----------------------
[Securities into which convertible: .
---------------------------------
Conversion price: .]
- -----------------
Interest Rate: % per annum.
- --------------
Interest Payment Date[s]: [ , ,]
- ------------------------
[ and] of each year,
commencing .
<PAGE>
Date of Maturity: , .
- -----------------
Indenture: Indenture dated , 199 , between the
- ----------
Company and , as Trustee.
[Defeasance provisions: .]
---------------------
[Other provisions:]]
-----------------
[Insert if Preferred Stock --
----------------------------
Title: .
- ------
Number of shares of Preferred Stock to be purchased:
- ---------------------------------------------------
Purchase Price to public (include accrued dividends, if any): $ per
- ------------------------
share of Preferred Stock.
Purchase Price to Underwriters (include accrued dividends, if any):
- ------------------------------
$ per share of Preferred Stock.
Liquidation preference: $ per share of Preferred Stock.
- -----------------------
Annual Dividend: % of liquidation preference, payable [annually]
- ---------------
[semi-annually] [quarterly] on [ , ]
[ and] ,
commencing .
[Conversion rate: .]
- ----------------
[Sinking fund provisions: [None] [ ].]
-----------------------
[Redemption provisions: [None] [ ].]
----------------------
[Other provisions:]]
----------------
[Insert if Common Stock --
-------------------------
Number of shares: .
- ----------------
Purchase price per share to the public: $ per share.
- --------------------------------------
Purchase price per share to the Underwriters: $ per share.]
- --------------------------------------------
[Insert if Warrants --
- ----------------------
-2-
<PAGE>
Title: .
- ------
Number: .
- -------
Securities issuable upon exercise of one Warrant: .
- ------------------------------------------------
Warrant exercise price: $ per Warrant.
- -----------------------
Date after which Warrants are exercisable: , .
- -----------------------------------------
Expiration Date: , .
- ---------------
Warrant Agent: .
- -------------
[Other Provisions:]]
-----------------
Closing: :00 A.M., , 199 , at ,
- -------
, in same day funds or such other time and place as may be
agreed to by the Representative[s] and the Company.
Names and Addresses of the Underwriters:
- ---------------------------------------
The provisions of the Underwriting Agreement are incorporated herein
by reference. The Securities will be made available for checking and packaging
at the office of _________________________________________________ at least 24
hours prior to the Closing.
-3-
<PAGE>
If the foregoing offer is acceptable to you, please sign where
indicated below, whereupon this Agreement will be a binding agreement between
us.
Very truly yours,
J.P. MORGAN SECURITIES INC.
CS FIRST BOSTON CORPORATION
on behalf of the several
Underwriters
By: J.P. MORGAN SECURITIES INC.
By:___________________________
We accept the above offer relating to [$_________ principal amount] [[_________]
shares] of our [Title of Securities].
FIRST SECURITY CORPORATION
By: __________________________
By: __________________________
By: __________________________
-4-
<PAGE>
ANNEX II
(Three copies of this Delayed Delivery Contract
----------------------------------------------
should be signed and returned to the address
--------------------------------------------
shown below so as to arrive not later than
------------------------------------------
9:00 A.M., New York time, on
----------------------------
________________ ___, 19__*.)
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of initial
----------------------
public offering]
---------------
First Security Corporation
79 South Main Street
Salt Lake City, Utah 84111
c/o J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, N.Y. 10260
Attention: [Insert name of JPM
------------------
Corporate Finance Officer]
-------------------------
Gentlemen:
The undersigned hereby agrees to purchase from First Security
Corporation, a Delaware corporation ("Company"), and the Company agrees to sell
to the undersigned, [If one delayed closing, insert--as of the date hereof, for
------------------------------
delivery on ______________, 19__ ("Delivery Date"),]
[$]______________
[principal amount] [shares] of the Company's [Insert title of securities]
--------------------------
("Securities"), offered by the Company's Prospectus dated __________, 19__ and a
Prospectus Supplement dated __________, 19__ relating thereto, receipt of copies
of which is hereby acknowledged, at [___% of the principal amount thereof plus
accrued interest, if any,] [$_____ per share] and on the further terms and
conditions set forth in this Delayed Delivery Contract ("Contract").
- ------------------
* Insert date which is third full business day prior to Closing Date under
------------------------------------------------------------------------
the Terms Agreement.
-------------------
<PAGE>
[If two or more delayed closings, insert the following:
------------------------------------------------------
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the [principal amounts]
[numbers of shares] set forth below:
[Principal Amount]
----------------
Delivery Date [Number of Shares]
------------- ----------------
_____________________ ___________
_____________________ ___________
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on--the--each--Delivery Date shall be made to the Company or its
order by certified or official bank check in New York Clearing House (next day)
funds at the office of ____________________ at ______.M. on--the--such--Delivery
Date upon delivery to the undersigned of the Securities to be purchased by the
undersigned--for delivery on such Delivery Date--in definitive fully registered
form and in such denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed to the Company
not less than five full business days prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on--the--each--Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date
-2-
<PAGE>
hereof, prohibited under the laws of any jurisdiction to which the undersigned
is subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by--a copy--copies--of the opinion[s] of counsel for
the Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below.
-3-
<PAGE>
This will become a binding contract between the Company and the undersigned when
such counterpart is so mailed or delivered.
Yours very truly,
_____________________________
(Name of Purchaser)
By _________________________
_________________________
(Title of Signatory)
_________________________
_________________________
(Address of Purchaser)
Accepted, as of the above date.
J.P. MORGAN SECURITIES INC.
By _____________________
[Insert Title]
-4-
<PAGE>
Draft of March 7, 1994
EXHIBIT 4(a)
FORM OF SENIOR DEBT SECURITIES INDENTURE
================================================================================
FIRST SECURITY CORPORATION
TO
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
__________
INDENTURE
Dated as of March 1, 1994
__________
Senior Debt Securities
================================================================================
<PAGE>
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
<S> <C>
(S) 310(a)(1)................................... 609
(a)(2)................................... 609
(a)(3)................................... Not Applicable
(a)(4)................................... Not Applicable
(b) .................................... 608
610
(S) 311(a) .................................... 613
(b) .................................... 613
(S) 312(a) .................................... 701
702(a)
(b) .................................... 702(b)
(c) .................................... 702(c)
(S) 313(a) .................................... 703
(b) .................................... 703
(c) .................................... 703
(d) .................................... 703
(S) 314(a) .................................... 704
(b) .................................... Not Applicable
(c)(1)................................... 102
(c)(2)................................... 102
(c)(3)................................... Not Applicable
(d) .................................... Not Applicable
(e) .................................... 102
(S) 315(a) .................................... 601
(b) .................................... 602
703
(c) .................................... 601
(d) .................................... 601
(e) .................................... 514
(S) 316(a) .................................... 101
(a)(1)(A) ............................... 502
512
(a)(1)(B) ............................... 513
(a)(2)................................... Not Applicable
(b) .................................... 508
(c) .................................... 104
(S) 317(a)(1)................................... 503
(a)(2)................................... 504
(b) .................................... 1003
(S) 318(a) .................................... 107
</TABLE>
- -------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
__________
ARTICLE ONE
Definitions and Other Provisions
of General Application
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
Section 101. Definitions ....................................... 1
Act ............................................... 2
Affiliate ......................................... 2
Authenticating Agent .............................. 2
Board of Directors ................................ 2
Board Resolution .................................. 2
Business Day ...................................... 2
Commission ........................................ 3
Company............................................ 3
Company Request or Company Order .................. 3
Consolidated Banking Assets ....................... 3
Controlled Subsidiary ............................. 3
Corporate Trust Office............................. 3
Corporation ....................................... 3
Covenant Defeasance ............................... 3
Defaulted Interest ................................ 4
Defeasance ........................................ 4
Depositary ........................................ 4
Event of Default .................................. 4
Exchange Act ...................................... 4
Global Security ................................... 4
Holder ............................................ 4
Indenture ......................................... 4
Interest .......................................... 4
Interest Payment Date ............................. 5
Major Constituent Bank ............................ 5
Maturity .......................................... 5
Notice of Default ................................. 5
Officers' Certificate ............................. 5
Opinion of Counsel ................................ 5
Original Issue Discount Security .................. 5
Outstanding ....................................... 5
Paying Agent ...................................... 7
Person ............................................ 7
Place of Payment .................................. 7
Predecessor Security .............................. 7
Redemption Date ................................... 7
</TABLE>
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Redemption Price .................................. 7
Regular Record Date ............................... 7
Responsible Officer ............................... 7
Securities ........................................ 8
Securities Act .................................... 8
Security Register ................................. 8
Special Record Date ............................... 8
Stated Maturity ................................... 8
Subsidiary ........................................ 8
Subsidiary Bank ................................... 8
Trust Indenture Act ............................... 8
Trustee ........................................... 8
U.S. Government Obligation ........................ 9
Vice President .................................... 9
Voting Stock ...................................... 9
Section 102. Compliance Certificates and Opinions .............. 9
Section 103. Form of Documents Delivered to Trustee............. 10
Section 104. Acts of Holders; Record Dates ..................... 11
Section 105. Notices, Etc., to Trustee and Company ............. 13
Section 106. Notice to Holders; Waiver ......................... 13
Section 107. Conflict with Trust Indenture Act ................. 14
Section 108. Effect of Headings and Table of
Contents .......................................... 14
Section 109. Successors and Assigns ............................ 14
Section 110. Separability Clause ............................... 14
Section 111. Benefits of Indenture ............................. 15
Section 112. Governing Law ..................................... 15
Section 113. Legal Holidays .................................... 15
ARTICLE TWO
Security Forms
Section 201. Forms Generally ................................... 15
Section 202. Form of Face of Security .......................... 16
Section 203. Form of Reverse of Security ....................... 18
Section 204. Form of Trustee's Certificate of
Authentication .................................... 23
Section 205. Form of Legend for Global Securities .............. 23
</TABLE>
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part of the Indenture.
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ARTICLE THREE
The Securities
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Section 301. Amount Unlimited; Issuable in Series;
Certain Terms ..................................... 24
Section 302. Denominations ..................................... 27
Section 303. Execution, Authentication, Delivery and
Dating ............................................ 27
Section 304. Temporary Securities .............................. 29
Section 305. Registration, Registration of
Transfer and Exchange ............................. 30
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities ........................................ 32
Section 307. Payment of Interest; Interest Rights
Preserved ......................................... 33
Section 308. Persons Deemed Owners ............................. 34
Section 309. Cancellation ...................................... 35
Section 310. Computation of Interest ........................... 35
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture ........... 35
Section 402. Application of Trust Money ........................ 37
ARTICLE FIVE
Remedies
Section 501. Events of Default ................................. 37
Section 502. Acceleration of Maturity; Rescission
and Annulment ..................................... 40
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee ........................ 41
Section 504. Trustee May File Proofs of Claim .................. 42
Section 505. Trustee May Enforce Claims Without
Possession of Securities .......................... 43
Section 506. Application of Money Collected .................... 43
Section 507. Limitation on Suits ............................... 44
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest ........... 44
Section 509. Restoration of Rights and Remedies ................ 45
Section 510. Rights and Remedies Cumulative .................... 45
Section 511. Delay or Omission Not Waiver ...................... 45
</TABLE>
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Section 512. Control by Holders................................. 46
Section 513. Waiver of Past Defaults............................ 46
Section 514. Undertaking for Costs.............................. 47
Section 515. Waiver of Stay or Extension Laws................... 47
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities................ 47
Section 602. Notice of Defaults................................. 49
Section 603. Certain Rights of Trustee.......................... 49
Section 604. Not Responsible for Recitals or
Issuance of Securities............................. 50
Section 605. May Hold Securities................................ 51
Section 606. Money Held in Trust................................ 51
Section 607. Compensation and Reimbursement..................... 51
Section 608. Disqualification; Conflicting Interests ........... 52
Section 609. Corporate Trustee Required; Eligibility ........... 52
Section 610. Resignation and Removal; Appointment of Successor.. 52
Section 611. Acceptance of Appointment by Successor ............ 54
Section 612. Merger, Conversion, Consolidation
or Succession to Business ......................... 56
Section 613. Preferential Collection of
Claims Against Company ............................ 56
Section 614. Appointment of Authenticating Agent ............... 56
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee
Names and Addresses of Holders .................... 58
Section 702. Preservation of Information;
Communications to Holders ......................... 59
Section 703. Reports by Trustee ................................ 59
Section 704. Reports by Company ................................ 60
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc.,
Only on Certain Terms ............................. 60
Section 802. Successor Substituted ............................. 61
</TABLE>
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ARTICLE NINE
Supplemental Indentures
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Section 901. Supplemental Indentures Without
Consent of Holders ................................ 62
Section 902. Supplemental Indentures with Consent
of Holders ........................................ 63
Section 903. Execution of Supplemental Indentures .............. 65
Section 904. Effect of Supplemental Indentures.................. 65
Section 905. Conformity with Trust Indenture Act................ 66
Section 906. Reference in Securities to
Supplemental Indentures............................ 65
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and
Interest .......................................... 66
Section 1002. Maintenance of Office or Agency ................... 66
Section 1003. Money for Securities Payments
to Be Held in Trust ............................... 67
Section 1004. Statement by Officers as to Default ............... 68
Section 1005. Existence ......................................... 69
Section 1006. Maintenance of Properties ......................... 69
Section 1007. Payment of Taxes and Other Claims ................. 69
Section 1008. Restriction on Sale or Issuance of
Voting Stock of, and Merger or Sale of
Assets by, Major Constituent Banks ................ 70
Section 1009. Restriction on Liens on Voting Stock
of Major Constituent Banks ........................ 71
Section 1010. Waiver of Certain Covenants ....................... 71
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article .......................... 72
Section 1102. Election to Redeem; Notice to Trustee ............. 72
Section 1103. Selection by Trustee of Securities
to Be Redeemed .................................... 73
Section 1104. Notice of Redemption .............................. 73
Section 1105. Deposit of Redemption Price ....................... 74
Section 1106. Securities Payable on Redemption Date ............. 74
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Section 1107. Securities Redeemed in Part ....................... 75
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article .......................... 75
Section 1202. Satisfaction of Sinking Fund Payments
with Securities ................................... 76
Section 1203. Redemption of Securities for Sinking
Fund .............................................. 76
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance
or Covenant Defeasance ............................ 77
Section 1302. Defeasance and Discharge .......................... 77
Section 1303. Covenant Defeasance ............................... 78
Section 1304. Conditions to Defeasance or
Covenant Defeasance ............................... 78
Section 1305. Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Miscellaneous Provisions .......................... 81
Section 1306. Reinstatement ..................................... 82
</TABLE>
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-vi-
<PAGE>
INDENTURE, dated as of March 1, 1994, between First Security
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
79 South Main Street, Salt Lake City, Utah 84111, and The First National Bank of
Chicago, a national banking association duly organized and existing under the
laws of the United States of America, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
<PAGE>
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or Section, as the case may
be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or con-trolled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking
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<PAGE>
institutions in that Place of Payment or in Salt Lake City, Utah are authorized
or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Banking Assets" of a Subsidiary Bank means all assets
owned directly or indirectly by such Subsidiary Bank and reflected on the
Company's consolidated balance sheet prepared in accordance with generally
accepted accounting principles.
"Controlled Subsidiary" means any Subsidiary more than 80% of the
outstanding shares of the Voting Stock of which is at the time owned directly or
indirectly by the Company or by one or more Controlled Subsidiaries or by the
Company and one or more Controlled Subsidiaries.
"Corporate Trust Office" means in respect of Securities which are not
Global Securities, the principal office or agency of the Trustee in New York,
New York, and, in respect of Global Securities, the principal office of the
Trustee in Chicago, Illinois, at which at any particular time in such respective
city, its corporate trust business shall be administered.
"corporation" means a corporation, association, company, joint stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
3
<PAGE>
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to the Securities, of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary for such series by the Company
pursuant to Section 301, which Person shall be a clearing agency registered
under the Securities Exchange Act of 1934, as amended, and if at any time there
is more than one such Person, 'Depositary' as used with respect to the
Securities of any series shall mean the Depositary with respect to the
Securities of such series.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Global Security" means a Security bearing the legend required by
Section 205 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee and registered in the name of such
Depositary or nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be part
of and govern this instrument and any such supplemental indenture, respectively.
The term "Indenture" shall also include the terms of particular series of
Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
4
<PAGE>
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an instalment of interest on such Security.
"Major Constituent Bank" means (i) First Security Bank of Utah, N.A.,
First Security Bank of Idaho, N.A. and First Security Bank of New Mexico, N.A.
and (ii) any Subsidiary Bank the Consolidated Banking Assets of which constitute
20% or more of the aggregate Consolidated Banking Assets of all Subsidiary
Banks.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(4) or 501(5).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
------
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore
5
<PAGE>
deposited with the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such
--------
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder, (i) the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof pursuant to Section 502,
(ii) if, as of such date, the principal amount payable at the Stated Maturity of
a Security is not determinable, the principal amount of such Security which
shall be deemed to be Outstanding shall be the amount as specified or determined
as contemplated by Section 301, (iii) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the
U.S. dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the U.S. dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above and in the case of a
Security described in clause (ii) above, of the amount determined as provided in
(ii) above) of such Security, and (iv) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand,
6
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authorization, direction, notice, consent, waiver or other action, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the 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 any premium or interest on, any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of, and any premium and
interest on, the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
7
<PAGE>
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
Voting Stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries.
"Subsidiary Bank" means any Subsidiary which is a bank or trust
company organized and doing business under any State or Federal law.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force from time to time on and after the date as of which this instrument was
executed; provided, however, that in the event the Trust Indenture Act of 1939
-------- -------
is amended after such date, "Trust Indenture Act" means, to the extent required
by any such amendment, the Trust Indenture Act of 1939 as so amended.
8
<PAGE>
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section
1304.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
Section 102. Compliance Certificates and Opinions.
------------------------------------
Except as otherwise expressly provided by the Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act.
Each such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
9
<PAGE>
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of any officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, legal counsel, unless such officer knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
10
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Section 104. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given, made
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Securities of any series entitled to give, make or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series by any Person in respect
of any such action, or, in the case of any such vote, prior to such vote, the
record date for any such action or vote shall be the 30th day (or, if later, the
date of the most recent list of Holders required to be provided pursuant to
Section 701) prior to such first solicitation or vote, as the case may be. With
regard to
11
<PAGE>
any record date for action to be taken by the Holders of one or more series of
Securities, only the Holders of Securities of such series on such date (or their
duly designated proxies) shall be entitled to give or take, or vote on, the
relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(f) Upon receipt by the Trustee of (i) any Notice of Default pursuant
to Section 501; (ii) any notice declaring an acceleration or rescission and
annulment thereof pursuant to Section 502; (iii) any request to institute
proceedings referred to in Section 507(2); or (iv) any direction pursuant to
Section 512 (in the case of any of (i), (ii), (iii) or (iv), a "Notice") from
any Holder or Holders with respect to Securities of a series all or part of
which is represented by a Global Security, a record date shall be established
for determining Holders of Outstanding Securities of such series entitled to
join in such Notice, which record date shall be at the close of business on the
third Business Day following the day the Trustee receives such Notice. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such Notice, whether or not such Holders
remain Holders after such record date; provided, that unless Holders of at least
--------
the percentage of the principal amount of the Outstanding Securities (the
"Required Principal Amount") of such series required to give such Notice, or
their proxies, shall have joined in such Notice, prior to the day which is 90
days after such record date, such Notice shall automatically and without further
action by any Holder be canceled and of no further effect. Nothing in this
paragraph shall prevent a Holder, or a proxy of a Holder, from giving (i) after
expiration of such 90-day period, a new Notice identical to a Notice which has
been canceled pursuant to the proviso to the preceding sentence, or (ii) during
any such 90-day period, an additional Notice with respect to any new or
different fact or circumstance permitting the giving of a Notice with respect to
Securities of such series, in either of which events a new record date
12
<PAGE>
shall be established pursuant to the provisions of this Section 104(f). Unless
any Notice specifies that it is given with respect to a lesser principal amount,
the Trustee shall treat the Notice as having been given with respect to the
entire principal amount of Securities held by such Holder. If a Notice is given
with respect to a principal amount of Securities which exceeds the Required
Principal Amount, no record date shall be established pursuant to this Section
104(f) to determine the Holders entitled to join in such Notice.
Section 105. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office: One First National
Plaza, Suite 0126, Chicago, Illinois 60670-0126, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at 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 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for
13
<PAGE>
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
14
<PAGE>
Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 112. Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
Section 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwith-standing any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
---------------
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may,
15
<PAGE>
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 202. Form of Face of Security.
------------------------
[Insert any legend required by the Internal Revenue Code and the
---------------------------------------------------------------
regulations thereunder.]
- ----------------------
THIS SECURITY IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER OBLIGATION OF
ANY BANK OR NONBANK SUBSIDIARY OF THE COMPANY AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER GOVERNMENTAL
AGENCY.
FIRST SECURITY CORPORATION
No. ________________ $ _________________
FIRST SECURITY CORPORATION, a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _____________, or registered assigns, the
principal sum of ________________ Dollars on
_________________________________________________ [If the Security is to bear
--------------------------
interest prior to Maturity, insert --, and to pay interest thereon from
- ----------------------------------
_______________ or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on __________ and ___________
in each year, commencing ________, at the rate of _____% per annum, until the
principal hereof is paid or made available for payment [If applicable, insert --
---------------------
, and (to the extent that the payment
16
<PAGE>
of such interest shall be legally enforceable) at the rate of _____% per annum
on any overdue principal and premium and on any overdue instalment of interest].
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the _____ or _____ (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture]. [If the
------
Security is not to bear interest prior to Maturity, insert -- The principal of
- ----------------------------------------------------------
this Security shall not bear interest except in the case of a default in payment
of principal upon acceleration, upon redemption or at Stated Maturity and in
such case the overdue principal and any overdue premium of this Security shall
bear interest at the rate of _____% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal or premium shall be
payable on demand. Any such interest on any overdue principal or premium that
is not so paid on demand shall bear interest at the rate of _____% per annum (to
the extent that the payment of such interest shall be legally enforceable),
which shall accrue from the date of such demand for payment to the date payment
of such interest has been made or duly provided for, and such interest shall
also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
--------------
insert -- any such] interest on this Security will be made at the office or
- ------
agency of the Company maintained for that purpose in __________, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert --;
---------------------
provided, however, that at
- -------- -------
17
<PAGE>
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
FIRST SECURITY CORPORATION
By__________________________________
Attest:
____________________________
Section 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of __________ __, 1994 (herein called the
"Indenture"), between the Company and __________________________________________
as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof[, limited in aggregate principal
amount to $_____________].
[If applicable, insert -- The Securities of this series are subject to
---------------------
redemption upon not less than 30 days'
18
<PAGE>
notice by mail, [if applicable, insert -- (1) on ___________ in any year
---------------------
commencing with the year _____ and ending with the year _____ through operation
of the sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [on or after ________, 19__], as a whole
or in part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed [on or before
__________, __%, and if redeemed] during the 12-month period beginning
___________ of the years indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
---------------------
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
---------------------
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
---------------------
(1) on __________ in any year commencing with the year _____ and ending with the
year _____ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2)] at any time [on or after __________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning __________ of the years indicated,
19
<PAGE>
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ----------------- ----------------------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
___________, redeem any Securities of this series as contemplated by [Clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than _____% per annum.]
[The sinking fund for this series provides for the redemption on
___________ in each year beginning with the year _____ and ending with the year
_____ of [not less than] $__________ [("mandatory sinking fund") and not more
than $__________] aggregate principal amount of Securities of this series.
[Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made [in the inverse
order in which they become due].]
[If the Security is subject to redemption, insert -- In the event of
---------------------------------------- ------
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for
------------- ------
defeasance at any time of [the entire
20
<PAGE>
indebtedness of this Security] [or] [certain restrictive covenants and Events of
Default with respect to this Security] [, in each case] upon compliance with
certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert --
---------------------------------------------------------- ------
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
------------------------------------------------------ ------
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
----------------------------------
amount. Upon payment (i) of the amount of principal so declared due and payable
- ------
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the
21
<PAGE>
Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default with respect to the Securities
of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or any premium or
interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $_____ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
22
<PAGE>
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Section 204. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The First National Bank of Chicago
as Trustee
By:
____________________________________
Authorized Signatory
Section 205. Form of Legend for Global Securities.
------------------------------------
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form or such other form as may be
determined pursuant to Section 201:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or nominee of a Depositary. This Global Security is
exchangeable for Securities registered in the name of a person other than
the Depositary or its nominee only in the limited circumstances described
in the Indenture, and no
23
<PAGE>
transfer of this Security (other than a transfer of this Security as a
whole by the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary) may
be registered except in such limited circumstances."
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series; Certain Terms.
---------------------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all Securities of any other
series);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities of
the series is payable;
24
<PAGE>
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any interest payable on any
Interest Payment Date;
(6) the place or places where the principal of, and any premium and
interest on, the Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of the Company and, if
other than by a Board Resolution, the manner in which any election by the
Company to redeem the Securities may be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(10) the currency, currencies, or currency units in which payment
of the principal of and any premium and interest on the Securities of the
series shall be payable if other than the currency of the United States of
America and the manner of determining the equivalent thereof in the
currency of the United States of America for purposes of the definition of
"Outstanding" in Section 101;
(11) if the amount of payments of principal of, or any premium or
interest on, any Securities of the series may be determined with reference
to an index or formula, the manner in which such amounts shall be
determined;
(12) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of
25
<PAGE>
acceleration of the Maturity thereof pursuant to Section 502;
(13) if the principal of, or any premium or interest on, any
Securities of the series is to be payable, at the election of the Company
or a Holder thereof, in one or more currencies or currency units, other
than that or those in which the Securities are stated to be payable, the
currency, currencies or currency units, including composite currencies, in
which payment of the principal of and any premium and interest on
Securities of such series as to which such election is made shall be
payable, and the periods within which and the terms and conditions upon
which such election is to be made (or the manner in which such amount shall
be determined);
(14) whether the Securities of the series shall be issued in whole
or in part in the form of one or more Global Securities and, in such case,
the Depositary or Depositaries with respect to such Global Security or
Securities, the form of any legend or legends which shall be borne by any
such Global Security in addition to or in lieu of that set forth in Section
205 and the circumstances under which any Global Security may be registered
for transfer or exchange, or authenticated and delivered, in the name of a
Person other than such Depositary or its nominee, if other than as set
forth in Section 305;
(15) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5));
(16) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(17) whether the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or Section
1303 or both such Sections and, if other than by a Board Resolution, the
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<PAGE>
manner in which any election by the Company to defease such Securities
shall be evidenced;
(18) any addition to or change in the Events of Default which
applies to any Securities of the series and any change in the right of the
Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 502; and
(19) any addition to or change in the covenants set forth in
Article Ten which applies to Securities of the series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set forth
or determined in the manner provided in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Executive or Senior Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
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Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under
28
<PAGE>
the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309 together
with a written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
29
<PAGE>
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like aggregate principal amount and tenor. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfer of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate
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<PAGE>
and deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any Global Security shall be exchangeable pursuant
to this Section 305 for Securities registered in the names of Persons other than
the Depositary for such series or its nominee if, but only if, (i) such
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or at any time ceases to be a clearing
agency registered as such under the Exchange Act, (ii) the Company executes and
delivers to the Trustee a Company Order that such Global Security shall be so
exchangeable or (iii) there shall have occurred and be continuing an Event of
Default with respect to the Securities of such series. Any Global Security that
is exchangeable pursuant to the
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preceding sentence shall be exchangeable for Securities registered in such names
as such Depositary shall direct.
Notwithstanding any other provision of this Indenture, a Global
Security may not be transferred except as a whole by the Depositary for such
Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this
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Indenture equally and proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such
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Defaulted Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of, and any premium
and (subject to Section 307) any interest on, such Security and for all other
purposes whatsoever,
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<PAGE>
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary shall be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the owner of
such Global Security for all purposes whatsoever, except as set forth herein.
Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be destroyed.
Section 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. 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 Securities herein
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<PAGE>
expressly provided for), 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 Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable,
or
(ii) will become due and payable at their Stated Maturity
within one year,
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal and any premium and
interest to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided
36
<PAGE>
for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money or U.S.
Government Obligations shall have been deposited with the Trustee (or another
trustee satisfying the conditions of Section 609) in accordance with Section
1302, the obligations of the Company to the Trustee (or other qualifying
trustee) under Section 1306, and if money shall have been deposited with the
Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations
of the Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
Section 402. Application of Trust Money.
--------------------------
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
37
<PAGE>
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; 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 series of Securities other than
that series), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 10% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or any Major Constituent
Bank (including a default with respect to Securities of any series other
than that series) or under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company or any Major Constituent
Bank (including this Indenture), whether such indebtedness now exists or
shall hereafter be created, which default shall constitute a failure to pay
any portion of the principal of such indebtedness when due and payable
after the expiration of any applicable grace period with respect thereto or
shall have resulted in such indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable, in any individual instance or in the aggregate (including any
other indebtedness subject to cross default with respect to payment or
cross acceleration as a result of such default or acceleration) in the
principal amount in excess of $1,000,000, without such indebtedness having
been discharged, or such acceleration having been rescinded or annulled,
within a period of 10 days after there shall have been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 10%
38
<PAGE>
in principal amount of the Outstanding Securities of that series a written
notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder;
provided, however, that, subject to Sections 601 and 602, the Trustee shall
-------- -------
not be deemed to have knowledge of such default unless either (A) a
Responsible Officer of the Trustee shall have actual knowledge of such
default or (B) the Trustee shall have received written notice thereof from
the Company, from any Holder, from the holder of any such indebtedness or
from the trustee under any such mortgage, indenture or other instrument; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Major
Constituent Bank in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging the Company or any Major Constituent
Bank a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company or any Major Constituent Bank under any applicable
Federal or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or
any Major Constituent Bank 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 or any Major Constituent Bank of
a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by the Company or any Major Constituent Bank to the entry of a
decree or order for relief in respect of the Company or any Major
Constituent Bank 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 the Company or any Major Constituent Bank, or the filing
by the Company or any Major Constituent Bank of a petition or answer or
39
<PAGE>
consent seeking reorganization or relief under any applicable Federal or
State law, or the consent by the Company or any Major Constituent Bank to
the filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or any Major Constituent Bank or of
any substantial part of its property, or the making by the Company or any
Major Constituent Bank of an assignment for the benefit of creditors, or
the admission by the Company or any Major Constituent Bank in writing of
its inability to pay its debts generally as they become due, or the taking
of corporate action by the Company or any Major Constituent Bank in
furtherance of any such action; or
(8) any other Event of Default provided with respect to Securities of
that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable, except that no such
declaration shall be required upon the occurrence of an Event of Default
specified in Section 501(6) or 501(7) in order for such principal amount (or
specified amount) to become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
40
<PAGE>
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of, and any premium on, any Securities of that
series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole
41
<PAGE>
amount then due and payable on such Securities for principal and any premium and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and any premium and on any
overdue interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Security or Securities and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Security
or Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to
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pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of, and any premium and interest on, the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and any premium and interest,
respectively.
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Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
----------------------------------------------------------------
Interest.
--------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, and any premium and (subject to
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Section 307) any interest on, such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
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Section 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of, or any premium or interest
on, any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
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.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive any past default
hereunder. If a record date is fixed, the Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, whether or not such Holders remain Holders after such record
date; provided, that unless such majority in principal amount shall have been
obtained prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action by any
Holder be canceled and of no further effect.
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Section 514. Undertaking for Costs.
---------------------
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, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
--------
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company or the Trustee.
Section 515. 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 wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
-----------------------------------
The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default has occurred (which has
not been cured or waived) the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of its own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent
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action, its own negligent failure to act or its own wilful misconduct, except
that
(1) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default which may have occurred:
(A) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(B) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a responsible officer or responsible officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the holders of not less than a majority in principal amount of the
Securities of any series at the time Outstanding relating to the time,
method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such series.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any
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of its rights or powers, if there shall be reasonable ground for believing that
the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 601 are in furtherance of and are
subject to, Section 315 of the Trust Indenture Act.
Section 602. Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of 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 501(4), the Trustee shall not give notice thereof to any Holders until
at least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
Section 603. Certain Rights of Trustee.
-------------------------
Subject to Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may,
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in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use or
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application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself
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against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
Section 608. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under the Indenture, dated as of
____________, 1994, between the Company and the Trustee.
Section 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and its Corporate
Trust Office in Chicago, Illinois or the Borough of Manhattan, The City of New
York, provided that, in the event that at any time there shall be outstanding
any Securities which are not Global Securities, such Trustee shall have a
Corporate Trust Office in the Borough of Manhattan, The City of New York. If
such Person publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then for the
purposes of this Section and to the extent permitted by the Trust Indenture Act,
the combined capital and surplus of such Person 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 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
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(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those
53
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series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section
611. If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all Holders of Securities of such series in the manner provided in Section
106. Each notice shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
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successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees 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
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred
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to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee
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hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 (except that such combined capital and
surplus amount shall not apply to First Chicago Trust Company of New York) and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such
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appointment by first-class mail, postage prepaid, to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve, as
their names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative cer-
tificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
____________________________
As Trustee
By___________________________
As Authenticating Agent
By___________________________
Authorized Signatory
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
------------------------------
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 10 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and
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addresses of the Holders as of such preceding Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
- ---------
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to 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 Securities are
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listed, with the Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
Section 704. 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
times and in the manner provided pursuant to such Act; provided that any such
--------
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, 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) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of, and any premium and interest on, all
the Securities and the performance or observance of every
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covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or a Subsidiary
as a result of such transaction as having been incurred by the Company or
such Subsidiary at the time of such transaction, no Event of Default, and
no event which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets (including any shares
of, or securities convertible into, or options, warrants or rights to
subscribe for or to purchase shares of, Voting Stock of any Subsidiary Bank
owned immediately prior thereto) of the Company would become subject to a
mortgage, pledge, lien, security interest or other encumbrance which would
not be permitted by this Indenture, the Company or such successor Person,
as the case may be, shall take such steps as shall be necessary effectively
to secure the Securities equally and ratably with (or prior to) all
indebtedness secured thereby; and
(4) 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, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of
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a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. 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 for any of the following
purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one
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or more series of Securities, provided that any such addition, change or
elimination (i) shall neither (A) apply to any Security of any series
created prior to the execution of such supplemental indenture and entitled
to the benefit of such provision nor (B) modify the rights of the Holder of
any such Security with respect to such provision or (ii) shall become
effective only when there is no such Security Outstanding; or
(6) to secure the Securities pursuant to the requirements of Section
1008 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this Clause (9)
--------
shall not adversely affect the interests of the Holders of Securities of
any series in any material respect.
Section 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
-------- -------
that no such supplemental
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indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or change any Place of Payment where, or the coin, currency or
currency unit in which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require
-------- -------
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1010, or the
deletion of this proviso, in accordance with the requirements of Sections
611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed
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<PAGE>
not to affect the rights under this Indenture of the Holders of Securities of
any other series.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled
to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
canceled and of no further effect.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. 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 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
65
<PAGE>
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such presen-
tations, surrenders, notices and demands may be made or
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<PAGE>
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
-------- -------
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such pur-
poses. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of, and any premium or interest on, any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of, and
any premium or interest on, any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of 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 (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to
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the Trustee all sums held in trust by such Paying Agent for payment in respect
of the Securities of such series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, and any premium or
interest on, any Security of any series and remaining unclaimed for two years
after such principal and any premium or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
-------- -------
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
Section 1004. Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder), and if the Company shall be
in default, specifying all such defaults
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and the nature and status thereof of which they may have knowledge.
Section 1005. 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 disadvantageous in any material respect to the Holders.
Section 1006. Maintenance of Properties.
-------------------------
The Company will cause all properties used or useful in the conduct
of its business or the business of any Subsidiary to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
--------
however, that nothing in this Section shall prevent the Company from
- -------
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
Section 1007. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
--------
however, that the Company shall not be required to pay or discharge or cause to
- -------
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
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<PAGE>
Section 1008. Restriction on Sale or Issuance of Voting Stock of, and Merger or
-----------------------------------------------------------------
Sale of Assets by, Major Constituent Banks.
------------------------------------------
Except as otherwise provided in Article Eight hereof, the Company will
not:
(a) sell, assign, transfer or otherwise dispose of any shares of, or
securities convertible into or options, warrants or rights to subscribe for
or purchase shares of, Voting Stock of a Major Constituent Bank (or a
Subsidiary owning Voting Stock of a Major Constituent Bank), and will not
permit a Major Constituent Bank (or a Subsidiary owning Voting Stock of a
Major Constituent Bank) to issue any shares of, or securities convertible
into or options, warrants or rights to subscribe for or purchase shares of,
such Voting Stock if, in each case, after giving effect to any such
transaction and to the issuance of the maximum number of shares of Voting
Stock of such Major Constituent Bank (or Subsidiary) issuable upon the
exercise of all such convertible securities, options, warrants or rights,
the Major Constituent Bank would cease to be a Controlled Subsidiary, or
(b) permit a Major Constituent Bank (or a Subsidiary owning Voting
Stock of a Major Constituent Bank) to
(i) merge or consolidate with or into any other corporation,
unless the surviving corporation is, or upon consummation of the
merger or consolidation will become, a Controlled Subsidiary; or
(ii) lease, sell or transfer all or substantially all of its
properties and assets to any Person, except to a Controlled Subsidiary
or a Person that, upon such lease, sale or transfer, will become a
Controlled Subsidiary.
Notwithstanding the foregoing, any such sale or other disposition of
securities, any such merger or consolidation or any such lease, sale or
transfer of properties and assets shall not be prohibited (i) if required by any
law or any rule, regulation or order of any governmental agency or authority,
(ii) if required as a condition imposed by any law or any rule, regulation or
order of any governmental agency or authority to the acquisition by the Company,
directly or indirectly, of any Person, provided that, after
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giving effect to such other prohibited transaction and such acquisition, (A)
such Person will be a Controlled Subsidiary and (B) the Consolidated Banking
Assets of the Company will be at least equal to the Consolidated Banking Assets
of the Company prior thereto, or (iii) if the proceeds from such otherwise
prohibited transaction are within 180 days after such transaction, or such
longer period of time as may be necessary to obtain regulatory approval in
connection therewith, invested by the Company, pursuant to an understanding or
agreement in principle reached at the time of such otherwise prohibited
transaction, in one or more Controlled Subsidiaries (including any Person which
upon such investment becomes a Controlled Subsidiary) engaged in the banking
business or any other business then legally permissible for bank holding
companies.
Section 1009. Restriction on Liens on Voting Stock of Major Constituent Banks.
---------------------------------------------------------------
The Company will not create, assume, incur or suffer to be created,
assumed or incurred or to exist any pledge, encumbrance or lien, as security for
indebtedness for borrowed money, upon any shares of, or securities convertible
into or options, warrants or rights to subscribe for or purchase shares of,
Voting Stock of a Major Constituent Bank now or hereafter owned by the Company,
directly or indirectly, without making effective provision whereby any
Securities shall be equally and ratably secured with any and all such
indebtedness if, treating such pledge, encumbrance or lien as a transfer of the
shares of, or securities convertible into or options, warrants or rights to
subscribe for or purchase shares of, Voting Stock subject thereto to the secured
party and after giving effect to the issuance of the maximum number of shares of
Voting Stock of such Major Constituent Bank issuable upon the exercise of all
such convertible securities, options, warrants or rights, the Major Constituent
Bank would not continue to be a Controlled Subsidiary.
Section 1010. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1006 to 1009, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least 66 2/3% in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or
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condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive any such term,
provision or condition. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled
to waive any such term, provision or condition hereunder, whether or not such
Holders remain Holders after such record date; provided, that unless the Holders
of at least 66 2/3% in principal amount of the Outstanding Securities of such
series shall have waived such term, provision or condition prior to the date
which is 90 days after such record date, any such waiver previously given shall
automatically and without further action by any Holder be canceled and of no
further effect.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the
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Trustee with an Officers' Certificate evidencing compliance with such
restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series 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
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series. If less than all of the
Securities of such series and of a specified tenor are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series and specified tenor not previously called for redemption in
accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
73
<PAGE>
(1) the Redemption Date,
(2) the Redemption Price (and interest, if any),
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any Securities,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price (and interest,
if any) will become due and payable upon each such Security to be redeemed
and, if applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemp-
74
<PAGE>
tion in accordance with said notice, such Security shall be paid by the Company
at the Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that, unless otherwise specified as contemplated by Section
- -------- -------
301, installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered; provided, that if a Global Security is as
--------
surrendered, such new Security so issued shall be a new Global Security in a
denomination equal to the unredeemed portion of the principal of the Global
Security so surrendered.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
75
<PAGE>
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
--------
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause
76
<PAGE>
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
------------------------------------------------------------
The Company may elect, at its option at any time, to have Section 1302
or Section 1303 applied to any Securities or any series of Securities, as the
case may be, designated pursuant to Section 301 as being defeasible pursuant to
such Section 1302 or 1303, in accordance with any applicable requirements
provided pursuant to Section 301 and upon compliance with the conditions set
forth below in this Article. Any such election shall be evidenced by a Board
Resolution or in another manner specified as contemplated by Section 301 for
such Securities.
Section 1302. Defeasance and Discharge.
------------------------
Upon the Company's exercise of its option (if any) to have this
Section applied to any Securities or any series of Securities, as the case may
be, the Company shall be deemed to have been discharged from its obligations
with respect to such Securities as provided in this Section on and after the
date the conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee
77
<PAGE>
hereunder and (4) this Article. Subject to compliance with this Article, the
Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have
Section 1303 applied to such Securities.
Section 1303. Covenant Defeasance.
-------------------
Upon the Company's exercise of its option (if any) to have this
Section applied to any Securities or any series of Securities, as the case may
be, (1) the Company shall be released from its obligations under Section 801(3),
Sections 1006 through 1009, inclusive, and any covenants provided pursuant to
Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such
Securities and (2) the occurrence of any event specified in Sections 501(4)
(with respect to any of Section 801(3), Sections 1006 through 1009, inclusive,
and any such covenants provided pursuant to Section 301(18), 901(2) or 901(7)),
501(5) and 501(8) shall be deemed not to be or result in an Event of Default, in
each case with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 1304 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so specified
in the case of Section 501(4)), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to the application of Section
1302 or Section 1303 to any Securities or any series of Securities, as the case
may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of such
Securities, (A) money in an amount, or (B) U.S.
78
<PAGE>
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of and any
premium and interest on such Securities on the respective Stated
Maturities, in accordance with the terms of this Indenture and such
Securities. As used herein, "U.S. Government Obligation" means (x) any
security which is (i) a direct obligation of the United States of America
for the payment of which the full faith and credit of the United States of
America is pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in
either case (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act) as custodian with respect to any
U.S. Government Obligation which is specified in Clause (x) above and held
by such bank for the account of the holder of such depositary receipt, or
with respect to any specific payment of principal of or interest on any
U.S. Government Obligation which is so specified and held, provided that
--------
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt
from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by
such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating 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 instrument, there
has been a change in the applicable Federal income tax law, in either case
(A) or (B) to the effect that, and based thereon such opinion shall confirm
that, the
79
<PAGE>
Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit, Defeasance and discharge to
be effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as
would be the case if such deposit, Defeasance and discharge were not to
occur.
(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit and Covenant Defeasance
were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 501(6) and
(7), at any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied
until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning of
such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit
80
<PAGE>
constituting an investment company within the meaning of the Investment
Company Act unless such trust shall be registered under such Act or exempt
from registration thereunder.
(9) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
Section 1305. Deposited Money and U.S. Government Obligations to Be Held
----------------------------------------------------------
in Trust; Miscellaneous Provisions.
-----------------------------------
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes
of this Section and Section 1306, the Trustee and any such other trustee
are referred to collectively as the "Trustee") pursuant to Section 1304 in
respect of any Securities shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become
due thereon in respect of principal and any premium and interest, but money
so held in trust need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1304 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of Outstanding
Securities.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited to effect
the Defeasance or Covenant Defeasance, as the case may be, with respect to
such Securities.
81
<PAGE>
Section 1306. Reinstatement.
-------------
Anything herein to the contrary notwithstanding, if and to the
extent the deposited money or U.S. Government Obligations (or the proceeds
thereof) either (i) cannot be applied by the Trustee in accordance with
Section 1305 because of a court order or (ii) are for any reason
insufficient in amount, then the Company's obligations to pay principal of
(and premium, if any) and interest on the Securities of such series shall
be reinstated as though no deposit had occurred pursuant to this Article
Thirteen until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 1305; provided, however,
-------- -------
that if the Company makes any payment of principal of (and premium, if any)
and interest on any such Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money held by the
Trustee or the Paying Agent. In any case specified in clause (i), the
Company's interest in the deposited money and U.S. Government Obligations
(and proceeds thereof) shall be reinstated to the extent the Company's
payment obligations are reinstated.
82
<PAGE>
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
FIRST SECURITY CORPORATION
By___________________________
Executive Vice President
Attest:
_________________________
______________________________
as Trustee
By___________________________
Authorized Officer
Attest:
_________________________
83
<PAGE>
STATE OF ______________ )
) ss.:
COUNTY OF _____________ )
On the ____ day of ____________, ____, before me personally came
_____________________, to me known, who, being by me duly sworn, did depose
and say that he is ____________________ of FIRST SECURITY CORPORATION, one
of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
______________________________
84
<PAGE>
STATE OF ______________ )
) ss.:
COUNTY OF _____________ )
On the ____ day of ____________, ____, before me personally came
_____________________, to me known, who, being by me duly sworn, did depose
and say that he is ____________________ of THE FIRST NATIONAL BANK OF
CHICAGO, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and
that he signed his name thereto by like authority.
__________________________________
85
<PAGE>
Draft of March 7, 1994
EXHIBIT 4(b)
FORM OF SUBORDINATED DEBT SECURITIES INDENTURE
================================================================================
FIRST SECURITY CORPORATION
TO
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
__________
INDENTURE
Dated as of March 1, 1994
__________
Subordinated Debt Securities
================================================================================
<PAGE>
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- ---------
<S> <C>
(S) 310(a)(1).......................................... 609
(a)(2).......................................... 609
(a)(3).......................................... Not Applicable
(a)(4).......................................... Not Applicable
(b)............................................. 608
610
(S) 311(a)............................................. 613
(b)............................................. 613
(S) 312(a)............................................. 701
702(a)
(b)............................................. 702(b)
(c)............................................. 702(c)
(S) 313(a)............................................. 703
(b)............................................. 703
(c)............................................. 703
(d)............................................. 703
(S) 314(a)............................................. 704
(b)............................................. Not Applicable
(c)(1).......................................... 102
(c)(2).......................................... 102
(c)(3).......................................... Not Applicable
(d)............................................. Not Applicable
(e)............................................. 102
(S) 315(a)............................................. 601
(b)............................................. 602
703
(c)............................................. 601
(d)............................................. 601
(e)............................................. 514
(S) 316(a)............................................. 101
(a)(1)(A)....................................... 502
512
(a)(1)(B)....................................... 513
(a)(2).......................................... Not Applicable
(b)............................................. 508
(c)............................................. 104
(S) 317(a)(1).......................................... 503
(a)(2).......................................... 504
(b)............................................. 1003
(S) 318(a)............................................. 107
</TABLE>
- ------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be part of the Indenture.
<PAGE>
TABLE OF CONTENTS
__________
<TABLE>
<CAPTION>
Page
----
<S> <C>
PARTIES................................................. 1
RECITALS OF THE COMPANY................................. 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
<C> <S> <C>
Section 101. Definitions.......................... 1
Act.................................. 2
Affiliate............................ 2
Authenticating Agent................. 2
Board of Directors................... 2
Board Resolution..................... 2
Business Day......................... 3
Commission........................... 3
Company.............................. 3
Company Request...................... 3
Consolidated Banking Assets.......... 3
Controlled Subsidiary................ 3
Corporate Trust Office............... 3
corporation.......................... 3
Covenant Defeasance.................. 4
Default.............................. 4
Defaulted Interest................... 4
Defeasance........................... 4
Depositary........................... 4
Entitled Persons..................... 4
Event of Default..................... 4
Excess Proceeds...................... 4
Exchange Act......................... 4
Existing Subordinated Indebtedness... 4
Global Security...................... 4
Holder............................... 5
indebtedness for money borrowed...... 5
Indenture............................ 5
interest............................. 5
Interest Payment Date................ 5
Major Constituent Bank............... 5
Maturity............................. 5
</TABLE>
- -------------------
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
i
<PAGE>
<TABLE>
<C> <S> <C>
Notice of Default..................... 5
Officers' Certificate................. 6
Opinion of Counsel.................... 6
Original Issue Discount Security...... 6
Other Financial Obligations........... 6
Outstanding........................... 6
Paying Agent.......................... 8
Person................................ 8
Place of Payment...................... 8
Predecessor Security.................. 8
Redemption Date....................... 8
Redemption Price...................... 8
Regular Record Date................... 9
Responsible Officer................... 9
Securities............................ 9
Securities Act........................ 9
Security Register..................... 9
Security Registrar.................... 9
Senior Indebtedness................... 9
Special Record Date................... 9
Stated Maturity....................... 10
Subsidiary............................ 10
Subsidiary Bank....................... 10
Trust Indenture Act................... 10
Trustee............................... 10
U.S. Government Obligation............ 10
Vice President........................ 10
Voting Stock.......................... 10
Section 102. Compliance Certificates and Opinions.. 11
Section 103. Form of Documents Delivered to Trustee 11
Section 104. Acts of Holders; Record Dates......... 12
Section 105. Notices, Etc., to Trustee and Company. 14
Section 106. Notice to Holders; Waiver............. 15
Section 107. Conflict with Trust Indenture Act..... 15
Section 108. Effect of Headings and Table of
Contents............................ 16
Section 109. Successors and Assigns................ 16
Section 110. Separability Clause................... 16
Section 111. Benefits of Indenture................. 16
Section 112. Governing Law......................... 16
Section 113. Legal Holidays........................ 16
ARTICLE TWO
Security Forms
Section 201. Forms Generally....................... 17
</TABLE>
- -----------------
Note: This table of contents shall not, for any purposes, be deemed to be a
part of the Indenture.
ii
<PAGE>
<TABLE>
<C> <S> <C>
Section 202. Form of Face of Security.............. 18
Section 203. Form of Reverse of Security........... 20
Section 204. Form of Trustee's Certificate of
Authentication...................... 25
Section 205. Form of Legend for Global Securities.. 26
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series;
Certain Terms......................... 26
Section 302. Denominations......................... 30
Section 303. Execution, Authentication, Delivery
and Dating.......................... 30
Section 304. Temporary Securities.................. 32
Section 305. Registration, Registration of
Transfer and Exchange............... 33
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities.......................... 35
Section 307. Payment of Interest; Interest Rights
Preserved............................. 36
Section 308. Persons Deemed Owners................. 37
Section 309. Cancellation.......................... 38
Section 310. Computation of Interest............... 38
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of
Indenture........................... 38
Section 402. Application of Trust Money............ 40
ARTICLE FIVE
Remedies
Section 501. Events of Default..................... 40
Section 502. Acceleration of Maturity; Rescission
and Annulment....................... 41
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.......... 43
Section 504. Trustee May File Proofs of Claim...... 45
Section 505. Trustee May Enforce Claims Without
Possession of Securities............ 46
</TABLE>
- -----------------
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
iii
<PAGE>
<TABLE>
<C> <S> <C>
Section 506. Application of Money Collected........ 46
Section 507. Limitation on Suits................... 47
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest............................ 47
Section 509. Restoration of Rights and Remedies.... 48
Section 510. Rights and Remedies Cumulative........ 48
Section 511. Delay or Omission Not Waiver.......... 48
Section 512. Control by Holders.................... 49
Section 513. Waiver of Past Defaults............... 49
Section 514. Undertaking for Costs................. 50
Section 515. Waiver of Stay or Extension Laws...... 50
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities... 50
Section 602. Notice of Defaults.................... 52
Section 603. Certain Rights of Trustee............. 52
Section 604. Not Responsible for Recitals or
Issuance of Securities.............. 53
Section 605. May Hold Securities................... 54
Section 606. Money Held in Trust................... 54
Section 607. Compensation and Reimbursement........ 54
Section 608. Disqualification; Conflicting
Interests........................... 55
Section 609. Corporate Trustee Required;
Eligibility......................... 55
Section 610. Resignation and Removal;
Appointment of Successor............ 55
Section 611. Acceptance of Appointment by
Successor........................... 57
Section 612. Merger, Conversion, Consolidation
or Succession to Business........... 59
Section 613. Preferential Collection of Claims
Against Company..................... 59
Section 614. Appointment of Authenticating Agent... 59
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names
and Addresses of Holders............ 61
Section 702. Preservation of Information;
Communications to Holders........... 62
Section 703. Reports by Trustee.................... 62
Section 704. Reports by Company.................... 63
</TABLE>
- ---------------
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
iv
<PAGE>
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
<TABLE>
<C> <S> <C>
Section 801. Company May Consolidate, Etc.,
Only on Certain Terms............... 63
Section 802. Successor Substituted................. 64
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without
Consent of Holders.................. 64
Section 902. Supplemental Indentures with Consent
of Holders.......................... 66
Section 903. Execution of Supplemental Indentures.. 68
Section 904. Effect of Supplemental Indentures..... 68
Section 905. Conformity with Trust Indenture Act... 68
Section 906. Reference in Securities to
Supplemental Indentures............. 68
Section 907. Subordination Unimpaired.............. 69
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and
Interest........................... 69
Section 1002. Maintenance of Office or Agency...... 69
Section 1003. Money for Securities Payments
to Be Held in Trust................ 70
Section 1004. Statement by Officers as to Default.. 71
Section 1005. Existence............................ 72
Section 1006. Maintenance of Properties............ 72
Section 1007. Payment of Taxes and Other Claims.... 72
Section 1008. Waiver of Certain Covenants.......... 73
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article............ 73
Section 1102. Election to Redeem; Notice to
Trustee........................... 74
</TABLE>
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Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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<TABLE>
<C> <S> <C>
Section 1103. Selection by Trustee of Securities
to be Redeemed......................... 74
Section 1104. Notice of Redemption..................... 75
Section 1105. Deposit of Redemption Price.............. 76
Section 1106. Securities Payable on Redemption Date.... 76
Section 1107. Securities Redeemed in Part.............. 76
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article................. 77
Section 1202. Satisfaction of Sinking Fund Payments
with Securities........................ 77
Section 1203. Redemption of Securities for Sinking
Fund................................... 78
ARTICLE THIRTEEN
Subordination of Securities
Section 1301. Securities Subordinate to
Senior Indebtedness.................... 78
Section 1302. Payment Over of Proceeds Upon
Dissolution, Etc....................... 79
Section 1303. Prior Payment to Senior Indebtedness
Upon Acceleration of Securities........ 80
Section 1304. No Payment When Senior Indebtedness
in Default............................. 81
Section 1305. Payment Permitted If No Default.......... 81
Section 1306. Subrogation to Rights of Holders of
Senior Indebtedness.................... 82
Section 1307. Provisions Solely to Define Relative
Rights................................. 82
Section 1308. Trustee to Effectuate Subordination and
Payment Provisions..................... 83
Section 1309. No Waiver of Subordination Provisions.... 83
Section 1310. Notice to Trustee; Trustee Not Charged
with Knowledge of Prohibition.......... 84
Section 1311. Reliance on Judicial Order or
Certificate of Liquidating Agent....... 85
Section 1312. Trustee Not Fiduciary for Holders
of Senior Indebtedness or Entitled
Persons................................. 85
</TABLE>
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Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
vi
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<TABLE>
<C> <S> <C>
Section 1313. Rights of Trustee as Holder of Senior
Indebtedness or Entitled Person;
Preservation of Trustee's Rights.... 86
Section 1314. Article Applicable to Paying Agents... 86
Section 1315. Securities to Rank Pari Passu with
Existing Subordinated Indebtedness;
Payment of Proceeds in Certain Cases. 86
ARTICLE FOURTEEN
Defeasance and Covenant Defeasance
Section 1401. Company's Option to Effect Defeasance
or Covenant Defeasance.............. 88
Section 1402. Defeasance and Discharge.............. 89
Section 1403. Covenant Defeasance................... 89
Section 1404. Conditions to Defeasance or Covenant
Defeasance......................... 90
Section 1405. Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Miscellaneous Provisions........... 93
Section 1406. Reinstatement......................... 94
</TABLE>
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Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
vii
<PAGE>
INDENTURE, dated as of March 1, 1994, between First Security
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
79 South Main Street, Salt Lake City, Utah 84111, and The First National Bank of
Chicago, a national banking association duly organized and existing under the
laws of the United States of America, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by
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reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or Section, as the case may
be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
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"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or in Salt Lake City, Utah are
authorized or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Banking Assets" of a Subsidiary Bank means all assets
owned directly or indirectly by such Subsidiary Bank and reflected on the
Company's consolidated balance sheet prepared in accordance with generally
accepted accounting principles.
"Controlled Subsidiary" means any Subsidiary more than 80% of the
outstanding shares of the Voting Stock of which is at the time owned directly or
indirectly by the Company or by one or more Controlled Subsidiaries or by the
Company and one or more Controlled Subsidiaries.
"Corporate Trust Office" means in respect of Securities which are not
Global Securities, the principal office or agency of the Trustee in New York,
New York, and, in respect of Global Securities, the principal office of the
Trustee in Chicago, Illinois, at which at any particular time in such respective
city, its corporate trust business shall be administered.
"corporation" means a corporation, association, company, joint stock
company or business trust.
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<PAGE>
"Covenant Defeasance" has the meaning specified in Section 1403.
"Default" has the meaning specified in Section 503.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1402.
"Depositary" means, with respect to the Securities, of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary for such series by the Company
pursuant to Section 301, which person shall be a clearing agency registered
under the Securities Exchange Act, and if at any time there is more than one
such Person, 'Depositary' as used with respect to the Securities of any series
shall mean the Depositary with respect to the Securities of such series.
"Entitled Persons" means any person entitled to payment pursuant to
the terms of Other Financial Obligations.
"Event of Default" has the meaning specified in Section 501.
"Excess Proceeds" shall have the meaning specified in Section 1315.
"Exchange Act" means the Securities and Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Existing Subordinated Indebtedness" means, unless otherwise
determined with respect to a series of Securities pursuant to Section 301, the
Company's 9.50% Convertible Subordinated Debentures Due 2006 issued under an
Indenture, dated as of April 1, 1981, between the Company and Irving Trust
Company, as trustee and the Company's 7.50% Subordinated Notes due 2002 issued
under an Indenture, dated as of August 1, 1991, between the Company and Norwest
Bank Minnesota, N.A., as trustee.
"Global Security" means a Security bearing the legend required by
Section 205 evidencing all or part of a series of Securities, issued to the
Depositary for such
4
<PAGE>
series or its nominee and registered in the name of such Depositary or nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"indebtedness for money borrowed", when used with respect to the
Company, means any obligation of, or any obligation guaranteed by, the Company
for the repayment of borrowed money, whether or not evidenced by bonds,
debentures, notes or other written instruments, and any deferred obligations of,
or any such obligation guaranteed by, the Company for the payment of the
purchase price of property or assets.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be part
of and govern this instrument and any such supplemental indenture, respectively.
The term "Indenture" shall also include the terms of particular series of
Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an instalment of interest on such Security.
"Major Constituent Bank" means (i) First Security Bank of Utah, N.A.,
First Security Bank of Idaho, N.A. and First Security Bank of New Mexico, N.A.
and (ii) any Subsidiary Bank the Consolidated Banking Assets of which constitute
20% or more of the aggregate Consolidated Banking Assets of all Subsidiary
Banks.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of a kind specified in
Section 503(C) or 503(D).
5
<PAGE>
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Other Financial Obligations" means, unless otherwise determined with
respect to any series of Securities pursuant to Section 301, (a) obligations of
the Company under direct credit substitutes, (b) obligations of, or any such
obligation directly or indirectly guaranteed by, the Company for purchased money
or funds, (c) any deferred obligation of, or any such obligation directly or
indirectly guaranteed by, the Company for the payment of the purchase price of
property or assets, (d) any obligation of, or any such obligation directly or
indirectly guaranteed by, the Company for the payment of rent or other amounts
under a lease of property or assets which obligation is required to be
classified and accounted for as a capitalized lease on the balance sheet of the
Company under generally accepted accounting principles, and (e) all obligations
to make payment pursuant to the terms of financial instruments, such as (i)
securities contracts and foreign currency exchange contracts, (ii) derivative
instruments, such as swap agreements (including interest rate and foreign
exchange rate swap agreements), cap agreements, floor agreements, collar
agreements, interest rate agreements, foreign exchange rate agreements, options,
commodity futures contracts, commodity options contracts and (iii) in the case
of both (e)(i) and (e)(ii) above, similar financial instruments other than (A)
obligations on account of Senior Indebtedness and (B) obligations on account of
indebtedness for money borrowed ranking pari passu with or subordinate to the
---- -----
Securities.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all
6
<PAGE>
Securities theretofore authenticated and delivered under this Indenture, except:
------
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation; and
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
--------
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; and
(iv) Securities as to which Defeasance has been effected pursuant to
Section 1402;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder, (i) the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof pursuant to Section 502,
(ii) if, as of such date, the principal amount payable at the Stated Maturity of
a Security is not determinable, the principal amount of such Security which
shall be deemed to be Outstanding shall be the amount as specified or determined
as contemplated by Section 301, (iii) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the
U.S. dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the U.S. dollar equivalent on the date of original
7
<PAGE>
issuance of such Security of the amount determined as provided in (i) above and
in the case of a Security described in clause (ii) above, of the amount
determined as provided in (ii) above) of such Security, and (iv) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the 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 any premium or interest on, any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of, and any premium and
interest on, the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
8
<PAGE>
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means, unless otherwise determined with respect
to any series of Securities pursuant to Section 301, the principal of and
premium, if any, and interest on (a) all indebtedness of the Company for money
borrowed, whether outstanding on the date of execution of this Indenture or
thereafter created, assumed or incurred, except (i) such indebtedness as is by
its terms expressly stated to be junior in right of payment to the Securities,
and (ii) such indebtedness as is by its terms expressly stated to rank pari
----
passu in right of payment with the Securities, and (b) renewals, extensions or
- -----
deferrals of any such Senior Indebtedness; provided, however, that Senior
-------- -------
Indebtedness shall not include any obligations on account of Existing
Subordinated Indebtedness.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
9
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"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
Voting Stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries.
"Subsidiary Bank" means any Subsidiary which is a bank or trust
company organized and doing business under any State or Federal law.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force from time to time on and after the date as of which this instrument was
executed; provided, however, that in the event the Trust Indenture Act of 1939
-------- -------
is amended after such date, "Trust Indenture Act" means, to the extent required
by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section
1404.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
10
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Section 102. Compliance Certificates and Opinions.
------------------------------------
Except as otherwise expressly provided by the Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act.
Each such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
11
<PAGE>
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of any officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, legal counsel, unless such officer knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given, made
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a
12
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certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Securities of any series entitled to give, make or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series by any Person in respect
of any such action, or, in the case of any such vote, prior to such vote, the
record date for any such action or vote shall be the 30th day (or, if later, the
date of the most recent list of Holders required to be provided pursuant to
Section 701) prior to such first solicitation or vote, as the case may be. With
regard to any record date for action to be taken by the Holders of one or more
series of Securities, only the Holders of Securities of such series on such date
(or their duly designated proxies) shall be entitled to give or take, or vote
on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(f) Upon receipt by the Trustee of (i) any Notice of Default pursuant
to Section 503; (ii) any notice declaring an acceleration or rescission and
annulment thereof pursuant to Section 502; (iii) any request to institute
proceedings referred to in Section 507(2) or
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(iv) any direction pursuant to Section 512 (in the case of any of (i), (ii),
(iii) or (iv), a "Notice") from any Holder or Holders with respect to Securities
of a series all or part of which is represented by a Global Security, a record
date shall be established for determining Holders of Outstanding Securities of
such series entitled to join in such Notice, which record date shall be at the
close of business on the third Business Day following the day the Trustee
receives such Notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such Notice,
whether or not such Holders remain Holders after such record date; provided,
--------
that unless Holders of at least the percentage of the principal amount of the
Outstanding Securities (the "Required Principal Amount") of such series required
to give such Notice, or their proxies, shall have joined in such Notice, prior
to the day which is 90 days after such record date, such Notice shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving (i) after expiration of such 90-day period, a new Notice
identical to a Notice which has been canceled pursuant to the proviso to the
preceding sentence, or (ii) during any such 90-day period, an additional Notice
with respect to any new or different fact or circumstance permitting the giving
of a Notice with respect to Securities of such series, in either of which events
a new record date shall be established pursuant to the provisions of this
Section 104(f). Unless any Notice specifies that it is given with respect to a
lesser principal amount, the Trustee shall treat the Notice as having been given
with respect to the entire principal amount of Securities held by such Holder.
If a Notice is given with respect to a principal amount of Securities which
exceeds the Required Principal Amount, no record date shall be established
pursuant to this Section 104(f) to determine the Holders entitled to join in
such Notice.
Section 105. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate
14
<PAGE>
Trust Office: One First National Plaza, Suite 0126, Chicago, Illinois
60670-0126, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at 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 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any
15
<PAGE>
provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or to
be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness, the Holders and, subject to
Section 907, Entitled Persons in respect of Other Financial Obligations, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
16
<PAGE>
Section 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
---------------
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be
17
<PAGE>
produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 202. Form of Face of Security.
------------------------
[Insert any legend required by the Internal Revenue Code and the
---------------------------------------------------------------
regulations thereunder.]
- ----------------------
THIS SECURITY IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER OBLIGATION OF
ANY BANK OR NONBANK SUBSIDIARY OF THE COMPANY AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER GOVERNMENTAL
AGENCY.
FIRST SECURITY CORPORATION
No. __________ $ __________
FIRST SECURITY CORPORATION, a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _____________, or registered assigns, the
principal sum of ________________ Dollars on
_________________________________________________ [If the Security is to bear
--------------------------
interest prior to Maturity, insert --, and to pay interest thereon from
- ----------------------------------
_______________ or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on __________ and ___________
in each year, commencing ________, at the rate of _____% per annum, until the
principal hereof is paid or made available for payment [If applicable insert --,
--------------------
and (to the extent that the payment of such interest shall be legally
enforceable) at the rate of _____% per annum on any overdue principal and
premium and on any overdue instalment of interest]. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the _____ or _____
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of
18
<PAGE>
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert --
-----------------------------------------------------------------
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium of this
Security shall bear interest at the rate of _____% per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such default in payment to the date payment of such principal
has been made or duly provided for. Interest on any overdue principal or
premium shall be payable on demand. Any such interest on any overdue principal
or premium that is not so paid on demand shall bear interest at the rate of
_____% per annum (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly provided for,
and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
--------------
insert -- any such] interest on this Security will be made at the office or
- ------
agency of the Company maintained for that purpose in __________, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert --;
-------------------------
provided, however, that at the option of the Company payment of interest may be
- ------------------
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
19
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
FIRST SECURITY CORPORATION
By________________________
Attest:
____________________________
Section 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of __________ __, 1994 (herein called the
"Indenture"), between the Company and The First National Bank of Chicago, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee, the
holders of Senior Indebtedness and the Holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof [, limited in
aggregate principal amount to $_____________].
[If applicable, insert -- The Securities of this series are subject to
---------------------
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
---------------------
(1) on ___________ in any year commencing with the year _____ and ending with
the year _____ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [on
or after ________, 19__], as a whole or in part, at the election of the Company,
at the following Redemption Prices (expressed as percentages of the principal
amount): If redeemed [on or before __________, __%, and if redeemed] during the
12-month period beginning ___________ of the years indicated,
20
<PAGE>
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
---------------------
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
---------------------
redemption upon not less than 30 days' notice by mail, (1) on __________ in any
year commencing with the year _____ and ending with the year _____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [on or
after __________], as a whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below: If redeemed during the 12-month period beginning __________ of the years
indicated,
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ----------------- ----------------------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such
21
<PAGE>
redemption (whether through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
___________, redeem any Securities of this series as contemplated by [Clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than _____% per annum.]
[The sinking fund for this series provides for the redemption on
___________ in each year beginning with the year _____ and ending with the year
_____ of [not less than] $__________ [("mandatory sinking fund") and not more
than $__________] aggregate principal amount of Securities of this series.
[Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made [in the inverse
order in which they become due].]
[If the Security is subject to redemption, insert -- In the event of
------------------------------------------------
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issue in the
name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for
---------------------
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants,] with respect to this Security] [, each case]
upon compliance with certain conditions set forth in the Indenture.]
[If applicable, insert -- The indebtedness evidenced by the Securities
---------------------
of this series is, to the extent provided in the Indenture, subordinated and
junior to the prior payment in full of the principal of (and premium, if any)
and interest on all Senior Indebtedness, as defined in the Indenture, and the
Securities of this series are issued subject to the provisions of the Indenture
with respect thereto. Each Holder of this Security, by accepting the
22
<PAGE>
same, agrees that each holder of Senior Indebtedness, whether created or
acquired before or after the issuance of this Security, shall be deemed
conclusively to have relied on such provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness. The Indenture also
provides that if, upon the occurrence of certain events of bankruptcy or
insolvency relating to the Company, there remains, after giving effect to such
subordination provisions, any amount of cash, property or securities available
for payment or distribution in respect of Securities of this series (as defined
in the Indenture, "Excess Proceeds"), and if, at such time, any Entitled Person
(as defined in the Indenture) has not received payment in full of all amounts
due or to become due on or in respect of Other Financial Obligations (as defined
in the Indenture), then such Excess Proceeds shall first be applied to pay or
provide for the payment in full of such Other Financial Obligations before any
payment or distribution may be made in respect of Securities of this series.
This Security is also issued subject to the provisions of the Indenture
regarding payments to Entitled Persons in respect of Other Financial
Obligations. Each Holder of this Security, by accepting the same, agrees to be
bound by the provisions of the Indenture described herein and authorizes and
directs the Trustee to take such action on his behalf as may be necessary or
appropriate to acknowledge or effectuate the subordination of this Security and
payment of Excess Proceeds as provided in the Indenture and appoints the Trustee
his attorney-in-fact for any and all such purposes.
[If the Security is not an Original Issue Discount Security, insert --
------------------------------------------------------------------
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
--------------------------------------------------------------
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
----------------------------------
amount. Upon payment (i) of the amount of principal so declared due and payable
- ------
and (ii) of interest on any overdue principal, premium and overdue interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of
23
<PAGE>
the principal of and premium and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default or Default with
respect to the Securities of this series, the Holders of not less than 25% in
principal amount of the Securities of this series at the time Outstanding shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default or Default as Trustee and offered the Trustee reasonable
indemnity, and the Trustee shall not have received from the Holders of a
majority in principal amount of Securities of this series at the time
Outstanding a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the respective due dates
expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if
24
<PAGE>
any) and interest on this Security at the times, place and rate, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $_____ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
25
<PAGE>
Section 204. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The First National Bank of
Chicago
as Trustee
By: __________________________
Authorized Signatory
Section 205. Form of Legend for Global Securities.
------------------------------------
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form or such other form as may be
determined pursuant to Section 201:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or nominee of a Depositary. This Global Security is
exchangeable for Securities registered in the name of a person other than
the Depositary or its nominee only in the limited circumstances described
in the Indenture, and no transfer of this Security (other than a transfer
of this Security as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in such limited
circumstances."
26
<PAGE>
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series; Certain Terms.
---------------------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all Securities of any other
series);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities of
the series is payable;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any interest payable on any
Interest Payment Date;
27
<PAGE>
(6) the place or places where the principal of, and any premium and
interest on, the Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of the Company and, if
other than by a Board Resolution, the manner in which any election by the
Company to redeem the Securities may be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(10) the currency, currencies, or currency units in which payment
of the principal of and any premium and interest on the Securities of the
series shall be payable if other than the currency of the United States of
America and the manner of determining the equivalent thereof in the
currency of the United States of America for purposes of the definition of
"Outstanding" in Section 101;
(11) if the amount of payments of principal of, or any premium or
interest on, any Securities of the series may be determined with reference
to an index or formula, the manner in which such amounts shall be
determined;
(12) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502;
(13) if the principal of, or any premium or interest on, any
Securities of the series is to be payable, at the election of the Company
or a Holder thereof, in one or more currencies or currency units, including
composite currencies, other than that or
28
<PAGE>
those in which the Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any
premium and interest on Securities of such series as to which such election
is made shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made (or the manner in which
such amount shall be determined);
(14) whether the Securities of the series shall be issued in whole
or in part in the form of one or more Global Securities and, in such case,
the Depositary or Depositaries with respect to such Global Security or
Securities, the form of any legend or legends which shall be borne by any
such Global Security in addition to or in lieu of that set forth in Section
205 and the circumstances under which any Global Security may be registered
for transfer or exchange, or authenticated and delivered, in the name of a
Person other than such Depositary or its nominee, if other than as set
forth in Section 305; and
(15) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(16) whether the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1402 or Section
1403 or both such Sections and, if other than by a Board Resolution, the
manner in which any election by the Company to defease such Securities
shall be evidenced;
(17) any addition to or change in the Events of Default or Defaults
which applies to any Securities of the series and any change in the right
of the Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 502;
29
<PAGE>
(18) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series;
(19) that the subordination provisions of Article Thirteen shall
apply to the Securities of the series or that any different subordination
provisions, including a different definition of the terms "Senior
Indebtedness," "Entitled Persons," "Existing Subordinated Indebtedness," or
"Other Financial Obligations," shall apply to the Securities of such
series; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set forth
or determined in the manner provided in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Thirteen. The indebtedness evidenced by the
Securities shall not be superior in right of payment to and shall rank pari
----
passu with the Company's 9.5% Convertible Subordinated Debentures due 2006
- -----
issued under an Indenture, dated as of April 1, 1981, between the Company and
Irving Trust Company, as trustee and the Company's 7.50% Subordinated Notes due
2002 issued under an Indenture dated as of August 1, 1991, between the Company
and Norwest Bank, N.A., as trustee.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series
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<PAGE>
shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Executive or Senior Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
31
<PAGE>
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309 together
with a written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
32
<PAGE>
Section 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like aggregate principal amount and tenor. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfer of Securities as herein provided.
33
<PAGE>
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor and with a like Maturity.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for
34
<PAGE>
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any Global Security shall be exchangeable pursuant
to this Section 305 for Securities registered in the names of Persons other than
the Depositary for such series or its nominee if, but only if, (i) such
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or at any time ceases to be a clearing
agency registered as such under the Exchange Act, (ii) the Company executes and
delivers to the Trustee a Company Order that such Global Security shall be so
exchangeable or (iii) there shall have occurred and be continuing a Default, or
an event which with notice, lapse of time or both would be a Default, with
respect to the Securities of such series. Any Global Security that is
exchangeable pursuant to the preceding sentence shall be exchangeable for
Securities registered in such names as such Depositary shall direct.
Notwithstanding any other provision of this Indenture, a Global
Security may not be transferred except as a whole by the Depositary for such
Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
35
<PAGE>
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
36
<PAGE>
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
37
<PAGE>
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of, and any premium
and (subject to Section 307) any interest on, such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary shall be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the owner of
such Global Security for all purposes whatsoever, except as set forth herein.
Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be destroyed.
38
<PAGE>
Section 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. 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 Securities herein expressly provided for), 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 Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable,
or
(ii) will become due and payable at their Stated Maturity
within one year,
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited
39
<PAGE>
with the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation,
for principal and any premium and interest to the date of such deposit
(in the case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money or U.S.
Government Obligations shall have been deposited with the Trustee (or another
trustee satisfying the conditions of Section 609) in accordance with Section
1402, the obligations of the Company to the Trustee (or other qualifying
trustee) under Section 1406, and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations
of the Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
Section 402. Application of Trust Money.
--------------------------
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
40
<PAGE>
ARTICLE FIVE
Remedies
Section 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) 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
(2) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by the Company to
the entry of a decree or order for relief in 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 the
Company, or the filing by the Company of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State law,
or the consent by the Company to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or
of any substantial part of its property, or the
41
<PAGE>
making by the Company of an assignment for the benefit of creditors, or the
admission by the Company in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the
Company in furtherance of any such action; or
(3) any other Event of Default provided with respect to Securities of
that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable, except that no such
declaration shall be required upon the occurrence of an Event of Default
specified in Section 501(1) and 501(2) in order for such principal amount (or
specified amount) to become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of, and any premium on, any Securities of that
series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities,
42
<PAGE>
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days; or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof; or
(3) default is made in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series;
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities the whole amount then due and payable on such
Securities for principal, (including any sinking fund payment or analogous
obligations) and any premium and interest and, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue principal
and any premium and on any overdue interest, at the rate or rates prescribed
therefor in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and
43
<PAGE>
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Security or Securities and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Security
or Securities, wherever situated.
"Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Default and whether it shall be occasioned by the provisions of Article Thirteen
or be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation or
any administrative or governmental body:
(A) an Event of Default with respect to that series specified in
Section 501; or
(B) the events referred to in subsections 503(1) through (3) above;
or
(C) 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 series of Securities other than that
series), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
10% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(D) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or any Major Constituent
Bank (including a default with respect to Securities of any series other
44
<PAGE>
than that series) or under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company or any Major Constituent
Bank (including this Indenture), whether such indebtedness now exists or
shall hereafter be created, which default shall constitute a failure to pay
any portion of the principal of such indebtedness when due and payable
after the expiration of any applicable grace period with respect thereto or
shall have resulted in such indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable, in any individual instance or in the aggregate (including any
other indebtedness subject to cross default with respect to payment or
cross acceleration as a result of such default or acceleration) in the
principal amount in excess of $3,000,000, without such indebtedness having
been discharged, or such acceleration having been rescinded or annulled,
within a period of 10 days after there shall have been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 10% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default and requiring the Company to cause such indebtedness to be
discharged or cause such acceleration to be rescinded or annulled and
stating that such notice is a "Notice of Default" hereunder; provided,
--------
however, that, subject to Sections 601 and 602, the Trustee shall not be
-------
deemed to have knowledge of such default unless either (A) a Responsible
Officer of the Trustee shall have actual knowledge of such default or (B)
the Trustee shall have received written notice thereof from the Company,
from any Holder, from the holder of any such indebtedness or from the
trustee under any such mortgage, indenture or other instrument; or
(E) any other Default provided with respect to Securities of that
series.
If a Default with respect to Securities of any series occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
45
<PAGE>
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
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Section 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: Subject to Article Thirteen, to the payment of the amounts
then due and unpaid for principal of, and any premium and interest on, the
Securities in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal
and any premium and interest, respectively.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
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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 Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
----------------------------------------------------------------
Interest.
--------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, and any premium and (subject to Section
307) any interest on, such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no
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right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
-----------------------------
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Default shall impair any such
right or remedy or constitute a waiver of any such Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of, or any premium or interest
on, any Security of such series, or
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(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
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.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive any past default
hereunder. If a record date is fixed, the Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, whether or not such Holders remain Holders after such record
date; provided, that unless such majority in principal amount shall have been
obtained prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action by any
Holder be canceled and of no further effect.
Section 514. Undertaking for Costs.
---------------------
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, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
--------
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company or the Trustee.
Section 515. 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 wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the
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execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
-----------------------------------
The Trustee, prior to the occurrence of a Default and after the curing
or waiving of all Defaults which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture. In
case a Default has occurred (which has not been cured or waived) the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of its own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(1) prior to the occurrence of a Default and after the curing or
waiving of all such Defaults which may have occurred:
(A) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(B) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not
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they conform to the requirements of this Indenture;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a responsible officer or responsible officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of not less than a majority in principal amount of the
Securities of any series at the time Outstanding relating to the time,
method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such series.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 601 are in furtherance of and are
subject to, Section 315 of the Trust Indenture Act.
Section 602. Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of 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 503(C), the Trustee shall not give notice thereof to any Holders until
at least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time or
both would become, a Default with respect to Securities of such series.
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Section 603. Certain Rights of Trustee.
-------------------------
Subject to Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
53
<PAGE>
inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
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Section 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
Section 608. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under the Indenture, dated as of
__________, 1994, between the Company and the Trustee.
Section 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and its Corporate
Trust Office in Chicago, Illinois or the Borough
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<PAGE>
of Manhattan, The City of New York, provided that, in the event that at any time
there shall be outstanding any Securities which are not Global Securities, such
Trustee shall have a Corporate Trust Office in the Borough of Manhattan, The
City of New York. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such
Person 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 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
56
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(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of
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competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all Holders of Securities of such series in the manner provided in Section
106. Each notice shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
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(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
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conver-
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sion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000
(except that such combined capital and surplus amount shall not apply to First
Chicago Trust Company of New York) and subject to supervision or examination by
Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the
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provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative cer-
tificate of authentication in the following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
____________________________
As Trustee
By___________________________
As Authenticating Agent
By___________________________
Authorized Signatory
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 10 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such preceding Regular Record
Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
- ---------
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list
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furnished to it as provided in Section 701 upon receipt of a new list so
furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to 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 Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
Section 704. 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
times and in the manner provided pursuant to such Act; provided that any such
--------
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, 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) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of, and any premium and interest on, all
the Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or a Subsidiary
as a result of such transaction as having been incurred by the Company or
such Subsidiary at the time of such transaction, no Default, and no event
which, after notice or lapse of time or both, would become a Default, shall
have happened and be continuing;
(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, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
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Section 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. 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 Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default or Defaults; or
(4) to add to or change any of the provisions of this Indenture to
such extent as
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shall be necessary to permit or facilitate the issuance of Securities in
bearer form, registrable or not registrable as to principal, and with or
without interest coupons, or to permit or facilitate the issuance of
Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(9) subject to Section 907, to add to, change or eliminate any of the
provisions of Article Thirteen in respect of one or more series of
Securities, including Outstanding Securities, provided that any such
addition, change or elimination shall not adversely affect the interests of
the Holders of Outstanding Securities of any series in any material
respect.
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this Clause
--------
(10) shall not adversely affect the
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interests of the Holders of Securities of any series in any material
respect.
Section 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
-------- -------
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or change any Place of Payment where, or the coin, currency or
currency unit in which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or modify the provisions of
this Indenture with respect to the subordination of the Securities in a
manner adverse to the Holders, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, 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
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(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to require
-------- -------
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1008, or the
deletion of this proviso, in accordance with the requirements of Sections
611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled
to consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. 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 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such
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supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
Section 907. Subordination Unimpaired.
------------------------
No provision in any supplemental indenture that affects the superior
position of the holders of Senior Indebtedness shall be effective against any
holder of Senior Indebtedness, unless such holder shall have consented thereto.
Notwithstanding any provision in this Indenture or otherwise, the rights of
Entitled Persons in respect of Other Financial Obligations under this Indenture
and otherwise in respect of the Securities or any series of the Securities may,
at any time and from time to time, be
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<PAGE>
modified in any respect or eliminated without the consent of any Entitled Person
in respect of Other Financial Obligations.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such presen-
tations, surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
-------- -------
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
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Section 1003. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of, and any premium or interest on, any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of, and
any premium or interest on, any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of 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 (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of such series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, and any premium or
interest on, any
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Security of any series and remaining unclaimed for two years after such
principal and any premium or interest has become due and payable shall be paid
to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
-------- -------
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 1004. Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder), and if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 1005. 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 disadvantageous in any material respect to the Holders.
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Section 1006. Maintenance of Properties.
-------------------------
The Company will cause all properties used or useful in the conduct
of its business or the business of any Subsidiary to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
--------
however, that nothing in this Section shall prevent the Company from
- -------
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
Section 1007. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
--------
however, that the Company shall not be required to pay or discharge or cause to
- -------
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 1008. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1006 to 1007, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least 66 2/3% in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the
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Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive any such term,
provision or condition. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be entitled
to waive any such term, provision or condition hereunder, whether or not such
Holders remain Holders after such record date; provided, that unless the Holders
of at least 66 2/3% in principal amount of the Outstanding Securities of such
series shall have waived such term, provision or condition prior to the date
which is 90 days after such record date, any such waiver previously given shall
automatically and without further action by any Holder be canceled and of no
further effect.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
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<PAGE>
Section 1103. Selection by Trustee of Securities to be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series 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
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series. If less than all of the
Securities of such series and of a specified tenor are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series and specified tenor not previously called for redemption in
accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price (and interest, if any),
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(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any Securities,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price (and interest,
if any) will become due and payable upon each such Security to be redeemed
and, if applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that, unless otherwise
-------- -------
specified as contemplated by
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Section 301, installments of interest whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of Section
307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered; provided, that if a Global Security is so
--------
surrendered, such new Security so issued shall be a new Global Security in a
denomination equal to the unredeemed portion of the principal of the Global
Security so surrendered.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein
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referred to as an "optional sinking fund payment". If provided for by the terms
of Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series (which Securities shall be subject to the provisions of
Article Thirteen) which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided that such
--------
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the
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redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
Subordination of Securities
Section 1301. Securities Subordinate to Senior Indebtedness.
---------------------------------------------
The subordination provisions in this Article Thirteen shall apply to
the Securities of any series to the extent established or determined with
respect to the Securities of such series pursuant to Section 301.
The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article and subject to Sections
1402 and 1403, the indebtedness represented by the Securities and the payment of
the principal of (and premium, if any) and interest on each and all of the
Securities are hereby expressly made subordinate and subject in right of payment
to the prior payment in full of all Senior Indebtedness.
Section 1302. Payment Over of Proceeds Upon Dissolution, Etc.
-----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Company, whether voluntary or involuntary and whether or not involving
solvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Company, then and in any
such event the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in money or
money's worth, before the Holders of the Securities are entitled to receive any
payment on account of principal of (or premium, if any) or interest on the
Securities, and to that end the holders of Senior Indebtedness shall be entitled
to receive, for application to the payment thereof, any payment or distribution
of any kind or character, whether in cash, property or securities, which may be
payable or deliverable
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in respect of the Securities in any such case, proceeding, dissolution,
liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or Holder of any Security shall have received any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, including any such payment or distribution which
may be payable or deliverable by reason of the payment of any other indebtedness
of the Company being subordinated to the payment of the Securities, before all
Senior Indebtedness is paid in full or payment thereof provided for, and if such
fact shall, at or prior to the time of such payment or distribution, have been
made known to the Trustee or, as the case may be, such Holder, then and in such
event such payment or distribution shall be paid over or delivered forthwith to
the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of the Company
for application to the payment of all Senior Indebtedness remaining unpaid, to
the extent necessary to pay all Senior Indebtedness in full, after giving effect
to any concurrent payment or distribution to or for the holders of Senior
Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment which are subordinated
in right of payment to all Senior Indebtedness which may at the time be
outstanding to substantially the same extent as, or to a greater extent than,
the Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the conveyance
or transfer of its properties and assets substantially as an entirety to another
Person upon the terms and conditions set forth in Article Eight shall not be
deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshalling of assets and liabilities of the Company
for the purposes of this Section if the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance or
transfer such properties and assets substantially as an entirety, as the case
may be, shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article Eight.
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Section 1303. Prior Payment to Senior Indebtedness Upon Acceleration of
---------------------------------------------------------
Securities.
----------
In the event that any Securities are declared due and payable before
their Stated Maturity, then and in such event the holders of the Senior
Indebtedness shall be entitled to receive payment in full of all amounts due on
or in respect of such Senior Indebtedness, or provision shall be made for such
payment in money or money's worth, before the Holders of the Securities are
entitled to receive any payment of (including any payment which may be payable
by reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities) principal of (or premium, if any)
or interest on the securities or on account of the purchase or other acquisition
of Securities.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1302 would be applicable.
Section 1304. No Payment When Senior Indebtedness in Default.
----------------------------------------------
(a) In the event and during the continuation of any default in the
payment of principal of (or premium, if any) or interest on any Senior
Indebtedness beyond any applicable grace period with respect thereto or (b) in
the event any judicial proceeding shall be pending with respect to any such
default, then no payment (including any payment which may be payable by reason
of the payment of any other indebtedness of the Company being subordinated to
the payment of the Securities) shall be made by the Company on account of
principal of (or premium, if any) or interest on the Securities or on account of
the purchase or other acquisition of Securities.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or
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prior to the time of such payment, have been made known to the Trustee or, as
the case may be, such Holder, then and in such event such payment shall be paid
over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1302 would be applicable.
Section 1305. Payment Permitted If No Default.
-------------------------------
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any case, proceeding, dissolution, liquidation or other winding
up, assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 1302 or under the conditions
described in Section 1303 or 1304, from making payments at any time of principal
of or interest on the Securities, or (b) the application by the Trustee or any
Paying Agent of any moneys deposited with it hereunder to the payment of or on
account of the principal of (or premium, if any) or interest on the Securities
and the retention by the Holders of any moneys so received if, at the time of
such payment, the Trustee or any such Paying Agent did not have knowledge that
such payment would have been prohibited by the provisions of this Article.
Section 1306. Subrogation to Rights of Holders of Senior Indebtedness.
-------------------------------------------------------
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities shall be subrogated (equally and ratably with the holders of
all Existing Subordinated Indebtedness and all indebtedness of the Company which
by its express terms is subordinated to indebtedness of the Company to
substantially the same extent as the Securities or the Existing Subordinated
Indebtedness are subordinated and is entitled to like rights of subrogation) to
the rights of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of (and premium, if any) and interest on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of the Senior Indebtedness of any cash, property
or securities to which the Holders of the Securities or the Trustee would be
entitled except for the
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provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Indebtedness by Holders of the Securities
or the Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities, be deemed to be a payment
or distribution by the Company to or on account of the Senior Indebtedness.
Section 1307. Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness (and, in the case of Section
1315, the holders of Existing Subordinated Indebtedness and Entitled Persons in
respect of Other Financial Obligations) on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional (and which, subject to the rights
under this Article of the holders of Senior Indebtedness and the rights under
Section 1315 of Entitled Persons in respect of Other Financial Obligations, is
intended to rank equally with all other general obligations of the Company), to
pay to the Holders of the Securities the principal of (and premium, if any) and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms; (b) affect the relative rights against the Company
of the Holders of the Securities and creditors of the Company other than the
holders of Senior Indebtedness and of Existing Subordinated Indebtedness; or (c)
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article of the holders of Senior Indebtedness,
and under Section 1315 of Entitled Persons in respect of Other Financial
Obligations, to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
Section 1308. Trustee to Effectuate Subordination and Payment Provisions.
----------------------------------------------------------
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to
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effectuate the subordination and payment provisions provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 1309. No Waiver of Subordination Provisions.
-------------------------------------
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
Section 1310. Notice to Trustee; Trustee Not Charged with Knowledge of
--------------------------------------------------------
Prohibition.
-----------
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment or
distribution to or by the Trustee in respect of the Securities. Notwithstanding
the provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment or distribution to or by the Trustee in
respect of the Securities, unless and until the
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Trustee shall have received written notice thereof from the Company or a holder
of Senior Indebtedness or from any trustee therefor or from any Entitled Persons
in respect of Other Financial Obligations, and, prior to the receipt of any such
written notice, the Trustee shall be entitled in all respects to assume that no
such facts exist.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee therefor) or an Entitled Person in respect of Other
Financial Obligations to establish that such notice has been given by a holder
of Senior Indebtedness (or a trustee therefor) or an Entitled Person in respect
of Other Financial Obligations. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness or an Entitled Person in respect of Other
Financial Obligations to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
or Other Financial Obligations held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment or distribution to
such Person pending judicial determination as to the right of such Person to
receive such payment.
Section 1311. Reliance on Judicial Order or Certificate of Liquidating Agent.
--------------------------------------------------------------
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee and the Holders of the Securities shall be entitled
to rely upon any order or decree entered by any court of competent jurisdiction
in which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company and the Entitled Persons in respect of Other
Financial Obligations, the amount thereof or payable
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thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
Section 1312. Trustee Not Fiduciary for Holders of Senior Indebtedness or
-----------------------------------------------------------
Entitled Persons.
----------------
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness or Entitled Persons in respect of Other Financial
Obligations and shall not be liable to any such holders or creditors if it shall
in good faith mistakenly pay over or distribute to Holders of Securities or to
the Company or to any other Person cash, property or securities to which any
holders of Senior Indebtedness or Entitled Persons in respect of Other Financial
Obligations shall be entitled by virtue of this Article or otherwise.
Section 1313. Rights of Trustee as Holder of Senior Indebtedness or Entitled
--------------------------------------------------------------
Person; Preservation of Trustee's Rights.
----------------------------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it and with respect to any Other Financial
Obligations owed to the Trustee as an Entitled Person, to the same extent as any
other holder of Senior Indebtedness or Entitled Person in respect of Other
Financial Obligations, as the case may be, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder or Entitled Person.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
Section 1314. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
--------
however, that Section 1313 shall not apply to the Company or
- -------
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any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
Section 1315. Securities to Rank Pari Passu with Existing Subordinated
--------------------------------------------------------
Indebtedness; Payment of Proceeds in Certain Cases.
--------------------------------------------------
(a) Subject to the provisions of this Section and to any provisions
established or determined with respect to Securities of any series pursuant to
Section 301, the Securities shall rank pari passu in right of payment with the
---- -----
Existing Subordinated Indebtedness.
(b) Upon the occurrence of any of the events specified in clauses
(a), (b) and (c) of the first paragraph of Section 1302, the provisions of that
Section and the corresponding provisions of each indenture or other instrument
or document establishing or governing the terms of any Existing Subordinated
Indebtedness shall be given effect on a pro rata basis to determine the amount
--- ----
of cash, property or securities which may be payable or deliverable as between
the holders of Senior Indebtedness, on the one hand, and the Holders of
Securities and holders of Existing Subordinated Indebtedness, on the other hand.
(c) If, after giving effect to the provisions of Section 1302,
Section 1306 and the respective corresponding provisions of each indenture or
other instrument or document establishing or governing the terms of any Existing
Subordinated Indebtedness on such pro rata basis, any amount of cash, property
--- ----
or securities shall be available for payment or distribution in respect of the
Securities ("Excess Proceeds"), and any Entitled Persons in respect of Other
Financial Obligations shall not have received payment in full of all amounts due
or to become due on or in respect of such Other Financial Obligations (and
provision shall not have been made for such payment in money or money's worth),
then such Excess Proceeds shall first be applied (ratably with any amount of
cash, property or securities available for payment or distribution in respect of
any other indebtedness of the Company that by its express terms provides for the
payment over of amounts corresponding to Excess Proceeds to Entitled Persons in
respect of Other Financial Obligations) to pay or provide for the payment of the
Other Financial Obligations remaining unpaid, to the extent necessary to pay all
Other Financial Obligations in full, after giving effect to any concurrent
payment or distribution to or for Entitled Persons in respect of Other Financial
Obligations. Any Excess Proceeds remaining after the payment (or provision for
payment) in full of all Other
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Financial Obligations shall be available for payment or distribution in respect
of the Securities.
(d) In the event that, notwithstanding the foregoing provisions of
subsection (c) of this Section, the Trustee or Holder of any Security shall have
received any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, before all Other Financial
Obligations are paid in full or payment thereof duly provided for, and if such
fact shall, at or prior to the time of such payment or distribution have been
made known to the Trustee or, as the case may be, such Holder, then and in such
event, subject to any obligation that the Trustee or such Holder may have
pursuant to Section 1302, such payment or distribution shall be paid over or
delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of
assets of the Company for payment in accordance with subsection (c).
(e) Subject to the payment in full of all Other Financial
Obligations, the Holders of the Securities shall be subrogated (equally and
ratably with the holders of all indebtedness of the Company that by its express
terms provides for the payment over of amounts corresponding to Excess Proceeds
to Entitled Persons in respect of Other Financial Obligations and is entitled to
like rights of subrogation) to the rights of the Entitled Persons in respect of
Other Financial Obligations to receive payments and distributions of cash,
property and securities applicable to the Other Financial Obligations until the
principal of and interest on the Securities shall be paid in full. For purposes
of such subrogation, no payments or distributions to Entitled Persons in respect
of Other Financial Obligations of any cash, property or securities to which
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Section, and no payments over pursuant to the provisions of
this Section to Entitled Persons in respect of Other Financial Obligations by
Holders of Securities or the Trustee, shall, as among the Company, its creditors
other than Entitled Persons in respect of Other Financial Obligations and the
Holders of Securities be deemed to be a payment or distribution by the Company
to or on account of the Other Financial Obligations.
(f) The provisions of subsections (c), (d) and (e) of this Section
are and are intended solely for the purpose of defining the relative rights of
the Holders of the Securities, on the one hand, and the Entitled Persons in
respect of Other Financial Obligations, on the other hand, after giving effect
to the rights of the holders of Senior
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Indebtedness, as provided in this Article. Nothing contained in subsections
(c), (d) and (e) of this Section is intended to or shall affect the relative
rights against the Company of the Holders of the Securities and (1) the holders
of Senior Indebtedness, (2) the holders of Existing Subordinated Indebtedness or
(3) other creditors of the Company other than Entitled Persons in respect of
Other Financial Obligations.
ARTICLE FOURTEEN
Defeasance and Covenant Defeasance
Section 1401. Company's Option to Effect Defeasance or Covenant Defeasance.
------------------------------------------------------------
The Company may elect, at its option at any time, to have Section 1402
or Section 1403 applied to any Securities or any series of Securities, as the
case may be, designated pursuant to Section 301 as being defeasible pursuant to
such Section 1402 or 1403, in accordance with any applicable requirements
provided pursuant to Section 301 and upon compliance with the conditions set
forth below in this Article. Any such election shall be evidenced by a Board
Resolution or in another manner specified as contemplated by Section 301 for
such Securities.
Section 1402. Defeasance and Discharge.
------------------------
Upon the Company's exercise of its option (if any) to have this
Section applied to any Securities or any series of Securities, as the case may
be, the Company shall be deemed to have been discharged from its obligations,
and the provisions of Article Thirteen shall cease to be effective, with respect
to such Securities as provided in this Section on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1404 and as more fully
set forth in such Section, payments in respect of the principal of and
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any premium and interest on such Securities when payments are due, (2) the
Company's obligations with respect to such Securities under Sections 304, 305,
306, 1002 and 1003, (3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (4) this Article. Subject to compliance with this Article,
the Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have
Section 1403 applied to such Securities.
Section 1403. Covenant Defeasance.
-------------------
Upon the Company's exercise of its option (if any) to have this
Section applied to any Securities or any series of Securities, as the case may
be, (1) the Company shall be released from its obligations under Sections 1006
and 1007, and any covenants provided pursuant to Section 301(17), 901(2) or
901(7) for the benefit of the Holders of such Securities, (2) the occurrence of
any event specified in Sections 503(C) (with respect to any of Sections 1006 and
1007, and any such covenants provided pursuant to Section 301(17), 901(2) or
901(7)), 503(D) shall be deemed not to be or result in a Default and (3) the
provisions of Article Thirteen shall cease to be effective, in each case with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter called "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means that, with
respect to such Securities, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such specified Section (to the extent so specified in the case of Section
503(C)) or Article Thirteen, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or Article or by reason of any
reference in any such Section or Article to any other provision herein or in any
other document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
Section 1404. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to the application of Section
1402 or Section 1403 to any Securities or any series of Securities, as the case
may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated
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by Section 609 and agrees to comply with the provisions of this Article
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities, (A) money in an
amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or any such other qualifying trustee) to pay and discharge, the
principal of and any premium and interest on such Securities on the
respective Stated Maturities, in accordance with the terms of this
Indenture and such Securities. As used herein, "U.S. Government Obligation"
means (x) any security which is (i) a direct obligation of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case (i) or (ii), is not callable or redeemable
at the option of the issuer thereof, and (y) any depositary receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is specified
in Clause (x) above and held by such bank for the account of the holder of
such depositary receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation which is so
specified and held, provided that (except as required by law) such
--------
custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific
payment of principal or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1402 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating
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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 instrument,
there has been a change in the applicable Federal income tax law, in either
case (A) or (B) to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Securities will not recognize gain or
loss for Federal income tax purposes as a result of the deposit, Defeasance
and discharge to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit, Defeasance and
discharge were not to occur.
(3) In the event of an election to have Section 1403 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit and Covenant Defeasance
were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, a Default with respect to such Securities or any other Securities
shall have occurred and be continuing at the time of such deposit or, with
regard to any such event specified in Sections 501(1) and (2), at any time
on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after
such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning of
such Act).
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(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be
registered under such Act or exempt from registration thereunder.
(9) At the time of such deposit, (A) no default in the payment of any
principal of or premium or interest on any Senior Debt shall have occurred
and be continuing, (B) no event of default with respect to any Senior Debt
shall have resulted in such Senior Debt becoming, and continuing to be, due
and payable prior to the date on which it would otherwise have become due
and payable (unless payment of such Senior Debt has been made or duly
provided for), and (C) no other event of default with respect to any Senior
Debt shall have occurred and be continuing permitting (after notice or
lapse of time or both) the holders of such Senior Debt (or a trustee on
behalf of such holders) to declare such Senior Debt due and payable prior
to the date on which it would otherwise have become due and payable.
(10) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
Section 1405. Deposited Money and U.S. Government Obligations to Be Held in
-------------------------------------------------------------
Trust; Miscellaneous Provisions.
-------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 1406, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1404 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
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Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law. Money and U.S.
Government Obligations so held in trust shall not be subject to the provisions
of Article Thirteen.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 1404 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
Section 1406. Reinstatement.
-------------
Anything herein to the contrary notwithstanding, if and to the extent
the deposited money or U.S. Government Obligations (or the proceeds thereof)
either (i) cannot be applied by the Trustee in accordance with Section 1405
because of a court order or (ii) are for any reason insufficient in amount, then
the Company's obligations to pay principal of (and premium, if any) and interest
on the Securities of such series shall be reinstated as though no deposit had
occurred pursuant to this Article Fourteen until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1405; provided, however, that if the Company makes any payment of principal of
-------- -------
(and premium, if any) and interest on any such Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held by
the Trustee or the Paying Agent. In any case specified in clause (i), the
Company's interest in the deposited money and U.S. Government Obligations (and
proceeds thereof) shall be reinstated to the extent the Company's payment
obligations are reinstated.
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
FIRST SECURITY CORPORATION
By___________________________
Executive Vice President
Attest:
_________________________
THE FIRST NATIONAL BANK
OF CHICAGO
as Trustee
By___________________________
Authorized Officer
Attest:
_________________________
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STATE OF ______________ )
) ss.:
COUNTY OF _____________ )
On the ____ day of ____________, ____, before me personally came
_____________________, to me known, who, being by me duly sworn, did depose and
say that he is ____________________ of FIRST SECURITY CORPORATION, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
________________________
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<PAGE>
STATE OF ______________ )
) ss.:
COUNTY OF _____________ )
On the ____ day of ____________, ____, before me personally came
_____________________, to me known, who, being by me duly sworn, did depose and
say that he is ____________________ of The First National Bank of Chicago, one
of the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
________________________
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Exhibit 4(g)
WARRANT AGREEMENT
WARRANT AGREEMENT dated as of __________, 1994 between First Security
Corporation, a Delaware corporation (the "Company"), and First Security Bank of
Utah, N.A., a national banking association, as Warrant Agent (the "Warrant
Agent").
The Company may issue warrants as hereinafter described (the "Warrants") to
purchase shares (the "Shares") of the common stock of the Company, par value
$1.25 per share (the "Common Stock"), from time to time and on a delayed basis
as permitted by Rule 415 of the Securities and Exchange Commission. Such
Warrants have been registered for this purpose under a registration statement on
Form S-3 filed by the Company on March 10, 1994 and covering up to $300,000,000
of unspecified securities, including Warrants.
The Company wishes the Warrant Agent to act on its behalf and the Warrant
Agent is willing to act in connection with the issuance, division, transfer,
exchange and exercise of Warrants.
In consideration of the foregoing and for the purpose of defining the terms
and provisions of the Warrants and the respective rights and obligations
thereunder of the Company, the Warrant Agent and the registered owners of the
Warrants (the "Holders"), the Company and the Warrant Agent hereby agree as
follows:
Section 1. Appointment of Warrant Agent
The Company hereby appoints Warrant Agent to act as agent for the Company
in accordance with the instructions hereinafter in the Agreement set forth, and
the Warrant Agent hereby accepts such appointment.
Section 2. Transferability and Form of Warrant
2.1. Registration. When and as issued by the Company, the Warrants shall
be numbered and shall be registered in a Warrant Register. The Company and the
Warrant Agent shall be entitled to treat the Holder of any Warrant as the owner
in fact thereof for all purposes and shall not be bound to recognize any
equitable or other claim to or interest in such Warrant on the part of any other
person, and shall not be liable for any registration of transfer of Warrants
which are registered or to be registered in the name of a fiduciary or the
nominee of a fiduciary unless made with actual knowledge that a fiduciary or
nominee is committing a breach of trust in requesting such registration of
transfer, or with such knowledge of such facts that its participation therein
amounts to bad faith.
2.2. Transfer. When and as issued by the Company, the Warrants shall be
transferable only on the books of the Company maintained at the principal office
of the Warrant Agent in Salt Lake City, Utah upon delivery thereof duly endorsed
by a Holder or by its duly authorized attorney or representative, or accompanied
by proper evidence of succession, assignment, or authority to transfer. In all
cases of transfer by an attorney, the original letter of attorney, duly
approved, or an official copy thereof, duly certified, shall be deposited and
remain with the Warrant Agent. In case of transfer by executors,
administrators, guardians or other legal representatives, duly authenticated
evidence of their authority shall be produced, and may be required to be
deposited and remain with the Warrant Agent in its discretion. Upon any
registration of transfer, the Warrant Agent shall countersign and deliver new
Warrants to the person entitled thereto.
2.3. Form of Warrants. The text of the Warrants and of the form of
election to purchase Shares shall be substantially as set forth in Exhibit A
attached hereto. The Warrants shall be executed on behalf of the Company by its
President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or an Assistant Secretary. The signature of
any of these officers on the Warrants may be manual or facsimile.
Warrants 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 one of them shall have ceased to
hold such offices prior to the delivery of such Warrants or did not hold such
office on the date of this Agreement.
Warrants shall be dated as of the date of counter-signature thereof by the
Company either upon initial issuance or upon division, exchange, substitution,
or transfer.
2.4. Countersignature of Warrants. The Warrants shall be countersigned by
the Warrant Agent (or any successor to the Warrant Agent then acting as warrant
agent under this Agreement) and shall not be valid for any purpose unless so
countersigned. Warrants may be countersigned, however, by the Warrant Agent (or
by its successor as warrant agent hereunder) and may be delivered by the Warrant
Agent, notwithstanding that the persons whose manual or facsimile signatures
appear thereon as proper officers of the Company shall have ceased to be such
officers at the time of such countersignature, issuance, or delivery. The
Warrant Agent shall, upon written instructions of the President or Secretary of
the Company, countersign, issue and deliver Warrants entitling the Holders
thereof to purchase the amount of Shares established per Warrant by the
applicable Prospectus Supplement (subject to adjustment pursuant to Section 10
hereof) and shall countersign and deliver Warrants as otherwise provided in this
Agreement.
Section 3. Exchange of Warrant Certificates
Warrant certificates may be exchanged for another certificate or
certificates entitling the Holder thereof to purchase a like aggregate number of
Shares as the certificate or certificates surrendered then entitle such Holder
to purchase. Any Holder of a Warrant desiring to exchange Warrant certificates
shall make such request in writing delivered to the Company, and shall
surrender, properly endorsed, the certificate or certificates evidencing the
Warrant or Warrants to be so exchanged. Thereupon, the Warrant Agent shall
countersign and deliver to the person entitled thereto a new Warrant certificate
or certificates, as the case may be, as so requested.
Section 4. Term of Warrants; Exercise of Warrants
4.1 Term. Each Warrant may be exercised in full or from time to time in
part at any time, as specified herein, on or after _____________ and at or
before _____ .m., _________ time, on ___________ or such later date as the
Company may designate, by notice to the Warrant Agent and the Holders mailed to
their addresses as set forth in the Warrant Register (the "Expiration Date").
Each Warrant not exercised at or before _____ .m., _________ time, on the
Expiration Date shall become void, and all rights of the Holder evidencing such
Warrant under this Agreement shall cease. Upon surrender of a Warrant together
with the Warrant Price to the Company at the principal office of the Warrant
Agent, the holder of such Warrant will be issued the number of Shares in respect
of which such Warrant is then exercised. Payment of the aggregate Warrant Price
shall be made in cash or by certified or cashier's check.
4.2 Exercise. Upon such surrender of Warrants and payment of the Warrant
Price as aforesaid, the Company shall issue and cause to be delivered with all
reasonable dispatch to or upon the written order of the Holder and in such name
or names as the Holder may designate, a certificate or certificates for the
number of full Shares so purchased upon the exercise of such Warrants, together
with cash, as provided in Section 11 hereof, in respect of any fractional Shares
otherwise issuable upon such surrender. Such certificate or certificates shall
be deemed to have been issued and any person so designated to be named therein
shall be deemed to have become a holder of record of such Shares as of the date
of the surrender of such Warrants and payment of the Warrant Price, as
aforesaid; provided, however, that if, at the date of surrender of such Warrants
and payment of such Warrant Price, the transfer books for the Shares or other
class of stock purchasable upon the exercise of such Warrants shall be closed,
the certificates for the Shares in respect of which such Warrants are then
exercised shall be issuable as of the date on which such books shall next be
opened (whether before or after the Expiration Date) and until such date the
Company shall be under no duty to deliver any certificate for such Shares;
provided further, however, that the transfer books of record, unless otherwise
required by law, shall not be closed at any one time for a period longer than
twenty days. The rights of purchase represented by the Warrants shall be
exercisable, at the election of the Holders thereof either in full or from time
to time in part and, in the event that a certificate evidencing Warrants is
exercised in respect of less than all of the Shares specified therein at any
time prior to the date of expiration of the Warrants, a new certificate
evidencing the remaining Warrant or Warrants will be issued, and the Warrant
Agent is hereby irrevocably authorized to countersign and to deliver the
required new Warrant certificates pursuant to the provisions of this Section and
of Section 2.4 hereof and the Company, whenever required by the Warrant Agent,
will supply the Warrant Agent with Warrant certificates duly executed on behalf
of the Company for such purpose.
Section 5. Payment of Taxes
<PAGE>
The Company will pay all documentary stamp taxes, if any, attributable to
the initial issuance of Shares issuable upon the exercise of Warrants; provided,
however, that the Company shall not be required to pay any tax or taxes which
may be payable in respect of any transfer involved in the issue or delivery of
any Warrants or certificates for Shares.
Section 6. Mutilated or Missing Warrants
In case any of the certificates evidencing the Warrants shall be mutilated,
lost, stolen or destroyed, the Company may, in its discretion, issue and deliver
in exchange and substitution for and upon cancellation of the mutilated Warrant
certificate, or in lieu of and substitution for the Warrant certificate lost,
stolen or destroyed, a new Warrant certificate of like tenor and representing an
equivalent right or interest; but only upon receipt of evidence satisfactory to
the Company and the Warrant Agent of such loss, theft or destruction of such
Warrant and indemnity, if requested, also satisfactory to them. Applicants for
such substitute Warrant certificate shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company or the Warrant
Agent may prescribe.
Section 7. Reservation of Shares
There have been reserved, and the Company shall at all times keep reserved,
out of its authorized Common Stock a number of shares of Common Stock sufficient
to provide for the exercise of the rights of purchase represented by the
outstanding Warrants. The Transfer Agent for the Common Stock (the Transfer
Agent) and every subsequent transfer agent for any shares of the Company's
capital stock issuable upon the exercise of any of the rights of purchase
aforesaid will be irrevocably authorized and directed at all times to reserve
such number of authorized shares as shall be requisite for such purpose. The
Company will keep a copy of this Agreement on file with the Transfer Agent for
the Common Stock and with every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of the rights of purchase
represented by the Warrants. The Warrant Agent is irrevocably authorized to
requisition from time to time from such Transfer Agent such stock certificates
required to honor outstanding Warrants upon exercise thereof in accordance with
the terms of this Agreement. The Company will supply such Transfer Agent with
duly executed stock certificates for such purpose and will provide or otherwise
make available any cash which may be payable as provided in Section 11 hereof.
All Warrants surrendered in the exercise of the rights thereby evidenced shall
be canceled by the Warrant Agent and shall thereafter be delivered to the
Company. Promptly after the Expiration Date, and subject to the provision of
Section 4.1 hereof, the Warrant Agent shall certify to the Company the aggregate
number of Warrants then outstanding, and thereafter no shares shall be subject
to reservation in respect of such Warrants.
Section 8. Purchase or Redemption of Warrants by the Company
8.1. Purchase of Warrants. The Company shall have the right, except as
limited by law, other agreements or herein, to purchase or otherwise acquire
Warrants at such times, in such manner and for such consideration as it may deem
appropriate.
8.2. Redemption of Warrants by the Company. The Company shall have the
right, except as limited by law, other agreements or herein, to redeem the
Warrants, in whole only, on thirty days' notice at $ per Warrant (as
adjusted pursuant to Section 10 hereof) at any time after one year from the date
of issuance of the Warrants if the average closing bid price of the Common Stock
(or closing price if then traded on a national securities exchange) for any
thirty consecutive trading days has equalled or exceeded $__________. Notice of
any such redemption will be mailed by the Company to the Holders. Unless, prior
to the expiration of such thirty day notice period, a Holder exercises his right
to purchase the Shares of Common Stock covered by his Warrants, such Holder will
forfeit his right to do so, and will be entitled only to the redemption price of
such Warrants if redeemed.
8.3. Cancellation of Warrants. In the event the Company shall purchase,
redeem, or otherwise acquire Warrants, the same shall thereupon be delivered to
the Warrant Agent and be canceled by it and retired. The Warrant Agent shall
cancel any Warrant surrendered for exchange, substitution, transfer, or exercise
in whole or in part.
Section 9. Warrant Price
During the period from ___________, through and including _________, the
exercise price of each Warrant will be ______________ (the "Warrant Price").
[During the period from _____________, through and including ____________, the
exercise price of each Warrant will be ________________.] The Warrant Price
shall be subject to adjustment pursuant to Section 10 hereof.
Section 10. Adjustment of Warrant Price and Number of Shares
The number and kind of securities purchasable upon the exercise of each
Warrant and the Warrant Price shall be subject to adjustment from time to time
upon the happening of certain events, as follows:
10.1. Adjustments. The number of Shares purchasable upon the exercise of
each Warrant and the Warrant Price shall be subject to adjustment as follows:
(a) In case the Company shall (i) pay a dividend in shares of Common Stock
or make a distribution in shares of Common Stock, (ii) subdivide its outstanding
shares of Common Stock, (iii) combine its outstanding shares of Common Stock
into a smaller number of shares of Common Stock or (iv) issue by
reclassification of its shares of Common Stock other securities of the Company,
the number of Shares purchasable upon exercise of each Warrant immediately prior
thereto shall be adjusted so that the Holder of each Warrant shall be entitled
to receive the kind and number of Shares or other securities of the Company
which he would have owned or have been entitled to receive after the happening
of any of such event or any record date with respect thereto. An adjustment
made pursuant to this paragraph (a) shall become effective immediately after the
effective date of such event retroactive to the record date, if any, for such
event.
(b) In case the Company shall issue rights, options or warrants to all or
substantially all holders of its shares of Common Stock, without any charge to
such holders, entitling them to subscribe for or purchase shares of Common Stock
at a price per share which is lower at the record date mentioned below than the
current market price per share of Common Stock (as defined in paragraph (d)
below), the number of Shares thereafter purchasable upon the exercise of each
Warrant shall be determined by multiplying the number of Shares theretofore
purchasable upon exercise of each Warrant by a fraction, of which the numerator
shall be the number of shares of Common Stock outstanding on the date of
issuance of such rights, options or warrants plus the number of additional
shares of Common Stock offered for subscription or purchase, and of which the
denominator shall be the number of shares of Common Stock outstanding on the
date of issuance of such rights, options or warrants plus the number of shares
which the aggregate offering price of the total number of shares of Common Stock
so offered would purchase at such current market price. Such adjustment shall
be made whenever such rights, options or warrants are issued, and shall become
effective retroactively immediately after the record date for the determination
of stockholders entitled to receive such rights, options or warrants.
(c) In case the Company shall distribute to all or substantially all
holders of its shares of Common Stock evidences of its indebtedness or assets
(excluding cash dividends or distributions paid from retained earnings of the
Company) or rights, options or warrants or convertible securities containing the
right to subscribe for or purchase shares of Common Stock (excluding those
referred to in paragraph (b) above) then in each case the number of Shares
thereafter purchasable upon the exercise of each Warrant shall be determined by
multiplying the number of Shares theretofore purchasable upon exercise of the
Warrant, by a fraction, of which the numerator shall be the then current market
price per share of Common Stock (as defined in paragraph (d) below) on the date
of such distribution, and of which the denominator shall be such current market
price per share of Common Stock, less the then fair value (as determined by the
Board of Directors of the Company, whose determination shall be conclusive) of
the portion of the assets or evidences of indebtedness so distributed or of such
subscription rights, options or warrants, or of such convertible securities
applicable to one share of Common Stock. Such adjustment shall be made whenever
any such distribution is made, and shall become effective on the date of
distribution retroactive to the record date for the determination of
shareholders entitled to receive such distribution.
(d) For the purposes of this Agreement the current or closing market price
per share of Common Stock of the Company at any date shall be deemed to be the
average daily per share closing price in the NASDAQ National Market System for
the twenty (20) consecutive trading days immediately preceding the date for
which the determination of current or closing market price is to be made. The
closing price referred to in clause (ii) above shall be the last reported sales
price or, in case no such reported sale takes place on such day, the average of
the reported closing bid and asked prices in the NASDAQ National Market System.
(e) No adjustment in the number of Shares purchasable by exercise of a
Warrant shall be made unless such adjustment would require an increase or
decrease of at least 1 percent in the number of Shares purchasable upon the
exercise of each Warrant; provided, however, that any adjustments which by
reason of this paragraph (e) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment.
<PAGE>
(f) Whenever the number of Shares purchasable upon the exercise of each
Warrant is adjusted, as herein provided, the Warrant Price per Share payable
upon exercise of each Warrant shall be adjusted by multiplying such Warrant
Price immediately prior to such adjustment by a fraction, of which the numerator
shall be the number of Shares purchasable upon the exercise of each Warrant
immediately prior to such adjustment, and of which the denominator shall be the
number of Shares so purchasable immediately thereafter.
(g) In case the Company shall sell and issue shares of Common Stock, or
rights, options, warrants or convertible securities containing the right to
subscribe for or purchase shares of Common Stock, at a price per share of Common
Stock (determined in the case of such rights, options, warrants or convertible
securities, by dividing (i) the total amount received or receivable by the
Company in consideration of the sale and issuance of such rights, options,
warrants or convertible securities, plus the total consideration payable to the
Company upon exercise or conversion thereof, by (ii) the total number of shares
of Common Stock covered by such rights, options, warrants or convertible
securities) lower than the current market price (as defined in paragraph (d)
above) in effect immediately prior to such sale and issuance, then the Warrant
Price shall be reduced to a price (calculated to the nearest cent) determined by
dividing (i) an amount equal to the sum of (l) the number of shares of Common
Stock outstanding immediately prior to such sale and issuance multiplied by the
then existing Warrant Price, plus (2) the consideration received by the Company
upon such sale and issuance, by (ii) the total number of shares of Common Stock
outstanding immediately after such sale and issuance, provided, however, that
adjustments pursuant to this paragraph (g) shall only be made if such sale or
issuance is to an officer, director or other affiliate of the Company, or any
relative of any of the above, and if no adjustment for such sale or issuance is
made pursuant to paragraph (c) above. The number of Shares purchasable upon the
exercise of each Warrant shall be that number determined by multiplying the
number of Shares issuable upon exercise immediately prior to such adjustment by
a fraction, of which the numerator is the Warrant Price in effect immediately
prior to such adjustment and the denominator is the Warrant Price as so
adjusted. For the purposes of such adjustments, the shares of Common Stock
which the holders of any such rights, options, warrants or convertible
securities shall be entitled to subscribe for or purchase shall be deemed to be
issued and outstanding as of the date of such sale and issuance and the
consideration received by the Company therefor shall be deemed to be the
consideration received by the Company for such rights, options, warrants or
convertible securities, plus the consideration or premiums stated in such
rights, options, warrants, or convertible securities to be paid for the shares
of Common Stock, covered thereby. In case the Company shall sell and issue
shares of Common Stock, or rights, options, warrants, or convertible securities
containing the right to subscribe for or purchase shares of Common Stock, for a
consideration consisting, in whole or in part, of property other than cash or
its equivalent, then in determining the "price per share of Common Stock" and
the "consideration received by the Company" for purposes of the first sentence
of this paragraph (g), the Board of Directors shall determine, in its
discretion, the fair value of said property and such determination, if made in
good faith, shall be binding upon all Holders of Warrants. There shall be no
adjustment of the Warrant Price pursuant to this paragraph (g) if the amount of
such adjustment would be less than $.05 per Share; provided, however, that any
adjustment which by reason of this provision is not required to be made shall be
carried forward and taken into account in any subsequent adjustment.
(h) Whenever the number of Shares purchasable upon the exercise of each
Warrant or the Warrant Price of such Shares is adjusted, as herein provided, the
Company shall cause the Warrant Agent to promptly mail by first class mail,
postage prepaid, to each Holder of a Warrant or Warrants notice of such
adjustment or adjustments together with a certificate of a firm of independent
public accountants selected by the Board of Directors of the Company (who may be
the regular accountants employed by the Company) setting forth the number of
Shares purchasable upon the exercise of each Warrant and the Warrant Price of
such Shares after such adjustment, a brief statement of the facts requiring such
adjustment and the computation by which such adjustment was made. Such
certificate shall be conclusive evidence of the correctness of such adjustment.
The Warrant Agent shall be entitled to rely on such certificate and shall be
under no duty or responsibility with respect to any such certificate, except to
exhibit the same, from time to time, to any holder of a Warrant or Warrants
desiring an inspection thereof during reasonable business hours. The Warrant
Agent shall not at any time be under any duty or responsibility to any Holders
of Warrants to determine whether any facts exist which may require any
adjustment of the Warrant Price or the number of Shares or other stock or
property purchasable or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed in making such
adjustment.
(i) For the purpose of this subsection 10.1, the term "Shares of Common
Stock" shall mean (i) the class of stock designated as the Common Stock of the
Company at the date of this Agreement, or (ii) any other class of stock
resulting from successive changes or reclassification of such Shares consisting
solely of changes in par value, or from par value to no par value, or from no
par value to par value. In the event that at any time, as a result of an
adjustment made pursuant to this subsection 10.1, the Holders of a Warrant or
Warrants shall become entitled to purchase any Shares of the Company other than
Shares of Common Stock, thereafter the number of such other Shares so
purchasable upon exercise of each Warrant and the Warrant Price of such Shares
shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the Shares
contained in paragraphs (a) through (h), inclusive, above, and the provisions of
Section 4 and subsections 10.2 through 10.4, inclusive, with respect to the
Shares shall apply on like terms to any such other Shares.
(j) Upon the expiration of any rights, options, warrants or conversion
privileges, if any thereof shall not have been exercised, the number of shares
purchasable upon exercise of a Warrant and the Warrant Price to the extent the
Warrant shall not then have been exercised, shall, upon such expiration, be
readjusted and shall thereafter be such as they would have been had it been
originally adjusted (or had the original adjustment not been required, as the
case may be) on the basis of (1) the only shares of Common Stock so issued were
the shares of Common Stock, if any, actually issued or sold upon the exercise of
such rights, options, warrants or conversion rights and (2) such shares of
Common Stock, if any, were issued or sold for the consideration actually
received by the Company upon such exercise plus the consideration, if any,
actually received by the Company for the issuance, sale or grant of all of such
rights, options, warrants or conversion rights whether or not exercised;
provided, further, that no such readjustment shall have the effect of increasing
the Warrant Price by an amount in excess of the amount of the adjustment
initially made in respect of the issuance, sale or grant of such rights,
options, warrants or convertible rights.
10.2. No Adjustment for Dividends. Except as provided in subsection 10.1,
no adjustment in respect of any dividends shall be made during the term of the
Warrants or upon the exercise of the Warrants.
10.3. Preservation of Purchase Rights upon Reclassification,
Consolidation, etc. In case of any consolidation of the Company with or merger
of the Company into another corporation or in case of any sale or conveyance to
another corporation of the property, assets or business of the Company as an
entirety or substantially as an entirety, the Company or such successor or
purchasing corporation, as the case may be, shall execute with the Warrant Agent
an agreement that each Holder of a Warrant shall have the right thereafter upon
payment of the Warrant Price in effect immediately prior to such action to
purchase upon exercise of each Warrant the kind and amount of Shares and other
securities and property which he would have owned or have been entitled to
receive after the happening of such consolidation, merger, sale or conveyance
had such Warrant been exercised immediately prior to such action. Such
agreement shall provide for adjustments, which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Section 10. The
Company shall mail by first class mail, postage prepaid, to the Holder of each
Warrant, notice of the execution of any such agreement. The provisions of this
subsection 10.3 shall similarly apply to successive consolidations, mergers,
sales, or conveyances. The Warrant Agent shall be under no duty or
responsibility to determine the correctness of any provisions contained in any
such agreement relating either to the kind or amount of Shares of stock or other
securities or property receivable upon exercise of Warrants or with respect to
the method employed and provided therein for any adjustments.
10.4. Statement on Warrants. Irrespective of any adjustments in the
Warrant Price or the number or kind of Shares purchasable upon the exercise of
the Warrants, Warrants theretofore or thereafter issued may continue to express
the same price and number and kind of Shares as are stated in the Warrants
initially issuable pursuant to this Agreement.
Section 11. Fractional Interests
The Company shall not be required to issue fractional Shares on the
exercise of Warrants. If more than one Warrant shall be presented for exercise
in full at the same time by the same Holder, the number of full Shares which
shall be issuable upon the exercise thereof shall be computed on the basis of
the aggregate number of Shares represented by the Warrants so presented. If any
fraction of a Share would, except for the provisions of this Section 11, be
issuable on the exercise of any Warrant (or specified portion thereof), the
Company shall pay an amount in cash equal to the current market price per Share
(as defined in Section 10.1(d) above) multiplied by such fraction.
Section 12. No Right as Stockholders; Notices to Warrant Holders
Nothing contained in this Agreement or in any of the Warrants shall be
construed as conferring upon the Holders or their transferees the right to vote
or to receive dividends or to consent or to receive notice as stockholders in
respect of any meeting of stockholders for the election of directors of the
Company or any other matter, or any rights whatsoever as stockholders of the
Company. If, however, at any time prior to the expiration of the Warrants and
prior to their exercise, any of the following events shall occur:
(a) any action which would require an adjustment pursuant to subsections
10.1 or 10.3, or
(b) a dissolution, liquidation, or winding up of the Company (other than
in connection with a consolidation, merger, or sale of all or
substantially all of its property, assets, and business as an
entirety) shall be proposed;
<PAGE>
then in any one or more of said events, the Company shall (a) give notice in
writing of such event to the Holders as provided in Section 17 hereof and (b)
cause notice of such event to be published once in one or more newspapers
printed in the English language and in general circulation in the cities of New
York, New York and Salt Lake City, Utah. Failure to publish or mail such notice
or any defect therein or in the publication or mailing thereof shall not affect
the validity of any action taken in connection with such dividend, distribution,
or subscription rights, or proposed dissolution, liquidation or winding up.
Section 13. Disposition of Proceeds on Exercise of Warrants; Inspection of
Warrant Agreement
The Warrant Agent shall account promptly to the Company with respect to
Warrants exercised and concurrently pay to the Company all moneys received by
the Warrant Agent for the purchase of the Shares through the exercise of such
Warrants.
The Warrant Agent shall keep copies of this Agreement and any notices given
or received hereunder available for inspection by Holders of Warrants during
normal business hours at its principal office in Salt Lake City, Utah. The
Company shall supply the Warrant Agent from time to time with such numbers of
copies of this Agreement as the Warrant Agent may request.
Section 14. Merger or Consolidation or Change of Name of Warrant Agent
Any corporation into which the Warrant Agent may be merged or with which it
may be consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the corporate trust business of the Warrant Agent, shall be the
successor to the Warrant Agent hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that
such corporation would be eligible for appointment as a successor Warrant Agent
under the provisions of Section 16 hereof. In case at the time such successor
to the Warrant Agent shall succeed to the agency created by this Agreement, any
of the Warrants shall have been countersigned but not delivered, any such
successor to the Warrant Agent may adopt the countersignature of the original
Warrant Agent and deliver such Warrants so countersigned; and in case at that
time any of the Warrants shall not have been countersigned, any successor to the
Warrant Agent may countersign such Warrants either in the name of the
predecessor Warrant Agent or in the name of the successor Warrant Agent; and in
all such cases Warrants shall have the full force provided in the Warrants and
in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and at
such time any of the Warrants shall have been countersigned but not delivered,
the Warrant Agent may adopt the countersignatures under its prior name and
deliver Warrants so countersigned; and in case at that time any of the Warrants
shall not have been countersigned, the Warrant Agent may countersign such
Warrants either in its prior name or in its changed name; and in all such cases
such Warrants shall have the full force provided in the Warrants and in this
Agreement.
Section 15. Concerning the Warrant Agent
The Warrant Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of which the Company
and the Holders of Warrants, by their acceptance thereof, shall be bound:
15.1. The statements contained herein and in the Warrants shall be taken
as statements of the Company and the Warrant Agent assumes no responsibility for
the correctness of any of the same except such as describe the Warrant Agent or
action taken by it. The Warrant Agent assumes no responsibility with respect to
the distribution of the Warrants except as herein otherwise provided.
15.2. The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrants to be complied with by the Company.
15.3. The Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys, agents or employees, and the Warrant Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys, agents, or employees or for any loss to the Company resulting
from such neglect or misconduct provided reasonable care shall have been
exercised in the selection and continued employment thereof.
15.4. The Warrant Agent may consult at any time with legal counsel
satisfactory to it (who may be counsel for the Company) and the Warrant Agent
shall incur no liability or responsibility to the Company or to any Holder of
any Warrant in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or the advice of such counsel.
15.5. Whenever in the performance of its duties under the Agreement the
Warrant Agent shall deem it necessary or desirable that any fact or matter be
provided or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proven and
established by a certificate signed by the President or a Vice President or the
Treasurer or the Secretary of the Company and delivered to the Warrant Agent;
and such certificate shall be full authorization to the Warrant Agent for any
action taken or suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
15.6. The Company agrees to pay the Warrant Agent reasonable compensation
for all services rendered by the Warrant Agent in the performance of its duties
under this Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charge of any kind and nature incurred by the
Warrant Agent in the performance of its duties under this Agreement, and to
indemnify the Warrant Agent and save it harmless against any and all
liabilities, including judgments, costs, and counsel fees, for anything done or
omitted by the Warrant Agent in the performance of its duties under this
Agreement except as a result of the Warrant Agent's negligence or bad faith.
15.7. The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company or one or more Holders of Warrants shall furnish the
Warrant Agent with reasonable security and indemnity for any costs and expenses
which may be incurred, but this provision shall not affect the power of the
Warrant Agent to take such action as the Warrant Agent may consider proper,
whether with or without any such security or indemnity. All rights of actions
under this Agreement or under any of the Warrants may be enforced by the Warrant
Agent without the possession of any of the Warrants or the production thereof at
any trial or other proceeding relative thereto, and any such action, suit or
proceeding instituted by the Warrant Agent shall be brought in its name as
Warrant Agent, and any recovery of judgment shall be for the ratable benefit of
the Warrants, as their respective rights or interests may appear.
15.8. The Warrant Agent and any stockholder, director, officer or employee
of the Warrant Agent may buy, sell or deal in any of the Warrants or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to or
otherwise act as fully and freely as though it were not Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any other legal entity.
15.9. The Warrant Agent shall act hereunder solely as agent, and its
duties shall be determined solely by the provisions hereof. The Warrant Agent
shall not be liable for anything which it may do or refrain from doing in
connection with this Agreement except for its own negligence or bad faith.
15.10. The Warrant Agent will not incur any liability or responsibility to
the Company or to any Holder of any Warrant for any action taken in reliance on
any notice, resolution, waiver, consent, order, certificate, or other paper,
document or instrument reasonably believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
15.11. The Warrant Agent shall not be under any responsibility in respect
of the validity of this Warrant Agreement or the execution and delivery hereof
(except the due execution hereof by the Warrant Agent) or in respect of the
validity or execution of any Warrant (except its countersignature thereof) nor
shall the Warrant Agent by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any Shares
(or other stock) to be issued pursuant to this Warrant Agreement or any Warrant,
or as to whether any Shares (or other stock) will when issued be validly issued,
fully paid and nonassessable, or as to the Warrant Price or the number or amount
of Shares or other securities or other property issuable upon exercise of any
Warrant.
15.12. The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board or the President or a Vice President or the Secretary or
the Treasurer of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and shall not be liable for any
action taken or suffered to be taken by it in good faith in accordance with
instructions of any such officers.
<PAGE>
Section 16. Change of Warrant Agent
The Warrant Agent may resign and may be discharged from its duties under
this Agreement by giving to the Company thirty days' notice in writing. The
Warrant Agent may be removed by like notice to the Warrant Agent from the
Company. If the Warrant Agent shall resign or be removed or shall otherwise
become incapable of acting, the Company shall appoint a successor to the Warrant
Agent. If the Company shall fail to make such appointment within a period of
thirty days after such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Warrant Agent or by
the Holder of a Warrant (who shall with such notice submit his Warrant for
inspection by the Company), then the Holder of any Warrant may apply to any
court of competent jurisdiction for the appointment of a successor to the
Warrant Agent. Any successor Warrant Agent, whether appointed by the Company or
such a court, shall be a bank or trust company in good standing, incorporated
under the laws of the United States of America or any state thereof and having
at the time of its appointment as Warrant Agent a combined capital and surplus
of at least $50,000,000. After appointment, the successor Warrant Agent shall
be vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Warrant Agent without further act or deed; but the
former Warrant Agent shall deliver and transfer to the successor Warrant Agent
any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Failure
to file any notice provided for in this Section 16, however, or any defect
therein, shall not affect the legality or validity of the resignation or removal
of the Warrant Agent or the appointment of the successor warrant agent, as the
case may be. In the event of such resignation or removal, the successor warrant
agent shall mail, first class, to each Holder, written notice of such removal or
resignation and the name and address of such successor Warrant Agent.
Section 17. Notices
(a) Any notice pursuant to this Agreement by the Company or by the Holder
of any Warrant to the Warrant Agent, or by the Warrant Agent or by the Holder of
any Warrant to the Company, shall be in writing and shall be deemed to have been
duly given if delivered or mailed certified mail, return receipt requested:
(i) If to the Company, addressed to it at 79 South Main Street, Salt Lake
City, Utah 84111, attention: Executive Vice President and Chief
Financial Officer.
(ii) If to the Warrant Agent, addressed to it at 79 South Main Street, Salt
Lake City, Utah 84111, attention: President.
Each party hereto may from time to time change the address to which notices to
it are to be delivered or mailed hereunder by notice in accordance with the
foregoing to the other party.
(b) Any notice mailed pursuant to this Agreement by the Company, the
Warrant Agent or to the Holders of Warrants shall be in writing and shall be
deemed to have been duly given if mailed, postage prepaid, to such Holders at
their respective addresses on the books of the Warrant Agent.
Section 18. Supplements and Amendments
The Company and the Warrant Agent may from time to time supplement or amend
this Agreement, without the approval of any Holders of Warrants, in order to
cure any ambiguity or to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions herein, or to
make any other provisions in regard to matters or questions arising hereunder
which the Company and the Warrant Agent may deem necessary or desirable and
which shall not be inconsistent with the provisions of the Warrants and which
shall not adversely affect the interest of the Holders of Warrants.
Section 19. Successors
All the covenants and provisions of this Agreement by or for the benefit of
the Company or the Holders shall bind and inure to the benefit of their
respective successors and assigns hereunder.
<PAGE>
Section 20. Merger or Consolidation of the Company
As long as any Warrant issued hereunder is outstanding and able to be
timely exercised, the Company will not merge or consolidate with or into any
other corporation unless the corporation resulting from such merger or
consolidation (if not the Company) shall expressly assume, by supplemental
agreement satisfactory in form to the Warrant Agent and duly executed and
delivered to the Warrant Agent, the due and punctual performance and observance
of each and every covenant and condition of this Agreement to be performed and
observed by the Company.
Section 21. Applicable Law
This Agreement and each Warrant issued hereunder shall be deemed to be a
contract made under the laws of the state of New York and for all purposes shall
be construed in accordance with the laws of said state.
Section 22. Delivery of Prospectus
The Company will furnish to the Warrant Agent sufficient copies of a
prospectus relating to the Shares deliverable upon exercise of the Warrants (the
"Prospectus"), and the Warrant Agent agrees that upon the exercise of any
Warrant, the Warrant Agent will deliver to the holder of the Warrant certificate
evidencing such Warrant, prior to or concurrently with the delivery of the
Shares issued upon such exercise, a Prospectus. The Warrant Agent shall not, by
reason of any such delivery, assume any responsibility for the accuracy or
adequacy of such Prospectus.
Section 23. Benefits of this Agreement
Nothing in this Agreement shall be construed to give to any person or
corporation other than the Company, the Warrant Agent, and the Holders of
Warrants any legal or equitable right, remedy or claim under this Agreement and
this Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent and the Holders of Warrants.
Section 24. Counterparts
This Agreement may be executed in any number of counterparts and each such
counterpart shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument.
Section 25. Captions
The captions of Sections and paragraphs of this Agreement have been
inserted for convenience only and shall have no substantive effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
FIRST SECURITY CORPORATION
Attest: By
--------------------------
Its President
- -----------------------------
Assistant Secretary
FIRST SECURITY BANK OF UTAH, N.A.
As Warrant Agent
By
-----------------------------
Authorized Signature
<PAGE>
EXHIBIT A
WARRANT TO PURCHASE _____ SHARES OF COMMON
STOCK VOID AFTER _____ P.M. _____ TIME ON 19__
FIRST SECURITY CORPORATION
INCORPORATED UNDER THE LAWS
OF THE STATE OF DELAWARE
No. _______
This certifies that, for value received,the registered holder hereof
or registered assigns (the Holder) is entitled to purchase from FIRST SECURITY
CORPORATION (the Company), a Delaware corporation, at any time during the period
commencing at _____ A.M., _____ time, on ________, 19__ and ending at _____
P.M., _____ time, on ________, 19__, at the purchase price per share (the
"Warrant Price") of $________, the number of shares of Common Stock, $1.25 par
value, of the Company which is equal to the number of Warrants set forth above
or, if designated, on the Purchase Form on the reverse side hereof. The number
of shares purchasable upon exercise of this Warrant and the Warrant Price per
share shall be subject to adjustment from time to time as set forth in the
Warrant Agreement referred to below.
This Warrant may be exercised in whole or in part by presentation of
this Warrant with the Purchase Form on the reverse side hereof duly executed and
simultaneous payment of the Warrant Price (subject to adjustment) at the
principal office of the Company in the continental United States. Payment of
such price shall be made at the option of the Holder hereof in cash or by
certified check or bank cashier's check.
This Warrant is one of a duly authorized issue of Common Stock
Purchase Warrants evidencing the right to purchase up to a maximum of
shares of Common Stock, $1.25 par value, of the Company and is issued under and
in accordance with a Warrant Agreement dated as of __________, 1994 (the
"Warrant Agreement") between the Company and the Warrant Agent, and is subject
to the terms and provisions contained in the Warrant Agreement, all of which are
hereby consented to by the Holder by acceptance hereof. A copy of the Warrant
Agreement may be obtained for inspection by the Holder hereof upon written
request to the Company or the Warrant Agent.
Upon any partial exercise of this Warrant, there shall be
countersigned and issued to the Holder hereof a new Warrant in respect of the
shares as to which this Warrant shall not have been exercised. This Warrant may
be exchanged at the office of the Company by surrender of this Warrant properly
endorsed either separately or in combination with one or more other Warrants for
one or more new Warrants of the same aggregate number of shares of Common Stock
evidenced by the Warrant or Warrants exchanged. No fractional shares will be
issued upon the exercise of rights to purchase hereunder, but the Company shall
pay the cash value of any fraction upon the exercise of one or more Warrants.
This Warrant is transferable at the office of the Warrant Agent in the manner
and subject to the limitations set forth in the Warrant Agreement.
The Holder hereof may be treated by the Company, the Warrant Agent and
all other persons dealing with this Warrant as the absolute owner hereof for any
purpose and as the person entitled to exercise the rights represented hereby, or
to the transfer hereof on the books of the Company any notice to the contrary
notwithstanding, and until such transfer on such books, the Company may treat
the Holder hereof as the owner for all purposes.
This Warrant does not entitle any Holder hereof to any of the rights
of a shareholder of the Company, including, without limitation, the right to
vote or to receive dividends or to consent or to receive notice as stockholders
in respect of any meeting of stockholders for the election of directors.
This Warrant shall not be valid or obligatory for any purpose until it
shall have been countersigned by the Warrant Agent.
Dated ____________________, 19__
FIRST SECURITY CORPORATION
By
-----------------------------
President
Attest:
- ------------------------------
Assistant Secretary
Countersigned:
FIRST SECURITY BANK OF UTAH, N.A.
Warrant Agent
By
------------------------------
Authorized Officer
<PAGE>
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay in
Dollars in cash or certified check or bank cashier's check the Warrant Price in
full for Warrants exercised to First Security Bank of Utah, N.A., 79 South Main
Street, Salt Lake City, Utah 84111, Attention: President, which payment must
specify the name of the holder and the number of Warrants exercised by such
holder. In addition, the holder must complete the information required below
and present this Warrant Certificate in person or by mail (certified or
registered mail is recommended) to the Warrant Agent at the appropriate address
set forth below. This Warrant Certificate, completed and duly executed, must be
received by the Warrant Agent within five business days of the payment transfer.
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise _________
Warrants, evidenced by this Warrant Certificate, to purchase ________ shares of
the Common Stock (the "Warrant Securities") of First Security Corporation and
represents that the undersigned has tendered payment for such Warrant Securities
in Dollars in cash or by certified or bank cashier's check to the order of First
Security Corporation, c/o First Security Bank of Utah, N.A., 79 South Main
Street, Salt Lake City, Utah 84111, in the amount of __________ in accordance
with the terms hereof. The undersigned requests that said principal amount of
Warrant Securities be in fully registered form in the authorized denominations,
registered in such names and delivered all as specified in accordance with the
instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
DATED: Name
------------------ ------------------------------------------------
Address
- ------------------------ ----------------------------------------------
(Insert Social Security
or Other Identifying ---------------------------------------
Number of Holder)
Signature Guaranteed: Signature
------------------------------------------
(Signature must conform in all respects to name of
- ---------------------- holder as specified on the face of this Warrant
Certificate and must bear a signature guarantee by a
bank, trust company or member broker of the New York,
Midwest or Pacific Stock Exchanges)
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at
--------------------------------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
By mail at
--------------------------------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants --
complete as appropriate.]
<PAGE>
Assignment
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED ____________________________ thereby sells, assigns and
transfers unto
- ---------------------- -------------------------------------------------------
(Please print name) (Please insert social security or other identifying
number)
- ----------------------
(Address)
- ----------------------
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ___________________ Attorney, to transfer
said Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
-----------------
------------------------------------------------
Signature
(Signature must conform in all respects to
name of holder as specified on the face of this
Warrant Certificate and must bear a signature
guarantee by a bank, trust company or member
broker of the New York, Midwest or Pacific Stock
Exchanges)
Signature Guaranteed
- ------------------------
<PAGE>
Exhibit(23)(a)
Consent of Deloitte & Touche.
We consent to the incorporation by reference in this Registration Statement of
First Security Corporation on Form S-3 of our report dated February 26, 1993,
incorporated by reference in the Annual Report on Form 10-K of First Security
Corporation for the year ended December 31, 1992, and to the reference to us
under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
Deloitte & Touche
March 9, 1994
<PAGE>
Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------------------------
FIRST SECURITY CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 87-6118148
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
79 South Main Street
Salt Lake City, Utah 84111
(Address of principal executive offices) (Zip Code)
Debt Securities
<PAGE>
(Title of Indenture Securities)
Item 1. General Information. Furnish the following
--------------------
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
------------------------------
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
-----------------
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
2
<PAGE>
Section 321(b) of the Act.
3
<PAGE>
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois,on the 15th day of February,
1994.
The First National Bank of Chicago,
Trustee,
By /s/ R. D. MANELLA
R. D. Manella
Vice President
*Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 12 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 26(b) to the Registration Statement on
Form S-3 of Dow Capital B.V. and The Dow Chemical Company, filed with the
Securities and Exchange Commission on June 3, 1991 (Registration No. 33-
36314).
4
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
February 15, 1994
Securities and Exchange Commission,
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between First Security
Corporation and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ R. D. MANELLA
R. D. Manella
Vice President
5
<PAGE>
EXHIBIT 7
A copy of the latest report of conditions of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
6
<PAGE>
Legal Title of Bank: First National Bank of Chicago Call Date: 9/30/93
Address: One First National Plaza, Suite 0460 ST-BK: 17-1630
City, State Zip: Chicago, IL 60670 FFIEC 031
FDIC Certificate No.: 0/3/6/1/8 Page RC-1
---------
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1993
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
C400 Less Than -
Dollar Amounts in ---- -----------
Thousands RCFD BIL MIL THOU
----------------- ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository
institutions (from Schedule RCA-A):
a. Noninterest-bearing balances and
currency and coin(1)................... 0081 6,140,040 1.a.
b. Interest-bearing balances(2)........... 0071 6,078,671 1.b.
2. Securities (from Schedule RC-B)........... 0390 580,723 2
3. Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank and
its Edge and Agreement subsidiaries,
and in IBFs:
a. Federal Funds sold..................... 0276 3,134,457 3.a.
b. Securities purchased under
agreements to resell................... 0277 252,650 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned
income (from Schedule RC-C)............ RCFD 2122 13,404,247 4.a.
b. LESS: Allowance for loan and lease
losses................................. RCFD 3123 343,005 4.b.
c. LESS: Allocated transfer risk reserve.. RCFD 3128 0 4.c.
d. Loans and leases, net of unearned
income, allowance, and reserve
(item 4.a minus 4.b and 4.c)........... 2125 13,061,242 4.d.
5. Assets held in trading accounts........... 2146 2,202,246 5.
6. Premises and fixed assets (including
capitalized leases)....................... 2145 500,925 6.
7. Other real estate owned (from
Schedule RC-M)............................ 2150 111,329 7.
8. Investments in unconsolidated
subsidiaries and associated
companies (from Schedule RC-M)............ 2130 14,491 8.
9. Customers' liability to this bank
on acceptances outstanding................ 2155 552,637 9.
10. Intangible assets (from
Schedule RC-M)............................ 2143 155,975 10.
11. Other assets (from
Schedule RC-F)............................ 2160 2,847,290 11.
12. Total assets (sum of items
1 through 11)............................. 2170 35,632,676 12.
- ------------------
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
7
<PAGE>
Legal Title of Bank: First National Bank of Chicago Call Date: 9/30/93
Address: One First National Plaza, Suite 0460 ST-BK: 17-1630
City, State Zip: Chicago, IL 60670 FFIEC 031
FDIC Certificate No.: 0/3/6/1/8 Page RC-2
---------
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands Bil Mil Thou
----------------- ------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of
totals of columns A and C
from Schedule RC-E, part 1).......... RCON 2200 14,261,174 13.a.
(1) Noninterest-bearing(1)........... RCON 6631 6,124,322 13.a.(1)
(2) Interest-bearing................. RCON 6636 8,136,852 13.a.(2)
b. In foreign offices, Edge and
Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)... RCFN 2200 10,168,389 13.b.
(1) Noninterest bearing.............. RCFN 6631 2,339,236 13.b.(1)
(2) Interest-bearing................. RCFN 6636 7,829,153 13.b.(2)
14. Federal funds purchased and
securities sold under agreements
to repurchase in domestic offices
of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
a. Federal funds purchased.............. RCFD 0278 2,411,666 14.a.
b. Securities sold under agreements to
repurchase........................... RCFD 0279 7,738 14.b.
15. Demand notes issued to the U.S.
Treasury................................ RCON 2840 102,420 15.
16. Other borrowed money.................... RCFD 2850 1,871,318 16.
17. Mortgage indebtedness and obligations
under capitalized leases................ RCFD 2910 267,000 17.
18. Bank's liability on acceptance
executed and outstanding................ RCFD 2920 552,637 18.
19. Subordinated notes and debentures....... RCFD 3200 1,175,000 19.
20. Other liabilities (from Schedule RC-G).. RCFD 2930 2,196,402 20.
21. Total liabilities (sum of items 13
through 20)............................. RCFD 2948 33,013,744 21.
22. Limited-Life preferred stock and
related surplus......................... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and
related surplus......................... RCFD 3838 0 23.
24. Common stock............................ RCFD 3230 200,858 24.
25. Surplus (exclude all surplus
related to preferred stock)............. RCFD 3839 2,249,790 25.
26. a. Undivided profits
and capital reserves................. RCFD 3632 169,255 26.a.
b. LESS: Net unrealized loss on
marketable equity securities......... RCFD 0297 0 26.b.
27. Cumulative foreign currency
translation adjustments................. RCFD 3284 (971) 27.
28. Total equity capital (sum of items
23 through 27).......................... RCFD 3210 2,618,932 28.
29. Total liabilities, limited-life
preferred stock, and equity
capital (sum of items 21, 22, and 28)... RCFD 3300 35,632,676 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external auditors as of any date during 1992
---------------------
.............................................. RCFA 6724 N/A M.1.
---------------------
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external
auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- -------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
8
