<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 16, 1999
REGISTRATION STATEMENT NO. 333-75271
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
<TABLE>
<S> <C> <C>
FIRST SECURITY CORPORATION DELAWARE 87-6118148
FIRST SECURITY CAPITAL II DELAWARE 87-6243305
FIRST SECURITY CAPITAL III DELAWARE 87-6243306
FIRST SECURITY CAPITAL IV DELAWARE 87-6243307
FIRST SECURITY CAPITAL V DELAWARE 87-6243308
(EXACT NAME OF EACH (STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
REGISTRANT AS SPECIFIED IN OF IDENTIFICATION
ITS CHARTER) INCORPORATION OR ORGANIZATION) NUMBER)
</TABLE>
------------------------
79 SOUTH MAIN STREET
SALT LAKE CITY, UTAH 84111
(801) 246-5976
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
------------------------
BRAD D. HARDY
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
FIRST SECURITY CORPORATION
79 SOUTH MAIN STREET
SALT LAKE CITY, UTAH 84111
(801) 246-5976
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C>
A. ROBERT THORUP, ESQ. LEE MEYERSON, ESQ.
RAY, QUINNEY & NEBEKER SIMPSON THACHER & BARTLETT
79 SOUTH MAIN STREET 425 LEXINGTON AVENUE
SALT LAKE CITY, UTAH 84111 NEW YORK, NEW YORK 10017-3954
TELEPHONE: (801) 532-1500 TELEPHONE: (212) 455-2000
FACSIMILE: (801) 532-7543 FACSIMILE: (212) 455-2502
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the Registration Statement becomes effective as determined by
market conditions and other factors.
------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
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 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
EXPLANATORY NOTE
This pre-effective Amendment No. 1 (this "Pre-Effective Amendment No. 1")
to the Registration Statement (the "Registration Statement") on Form S-3 (File
No. 333-75271) contains only certain exhibits which had previously been
designated in the list of Exhibits of Item 16 of Part II of such Registration
Statement as to be filed by amendment. This Pre-Effective Amendment No. 1
contains all such exhibits.
i
<PAGE> 3
PART II
ITEM 16. EXHIBITS
The following exhibits are filed as part of this Pre-Effective Amendment
No. 1:
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
Exhibit 1* Form of Underwriting Agreement.
Exhibit 4(a)* Indenture dated as of March 30, 1999 relating to the Junior
Subordinated Debentures by and between First Security
Corporation and The First National Bank of Chicago, as
Indenture Trustee.
Exhibit 4(b)* Form of Guarantee Agreement to be entered by and between
First Security Corporation, as Guarantor, and The First
National Bank of Chicago, as Guarantor Trustee, for the
benefit of the holders of Preferred Securities.
Exhibit 4(c)* Form of Preferred Security Certificate (included as Exhibit
A to Exhibit 4(m) hereto).
Exhibit 4(d)* Form of Junior Subordinated Debenture (included in Article 2
of Exhibit 4(a) hereto).
Exhibit 4(e)* Certificate of Trust of First Security Capital II.
Exhibit 4(f)* Certificate of Trust of First Security Capital III.
Exhibit 4(g)* Certificate of Trust of First Security Capital IV.
Exhibit 4(h)* Certificate of Trust of First Security Capital V.
Exhibit 4(i)* Declaration of Trust of First Security Capital II.
Exhibit 4(j)* Declaration of Trust of First Security Capital III.
Exhibit 4(k)* Declaration of Trust of First Security Capital IV.
Exhibit 4(l)* Declaration of Trust of First Security Capital V.
Exhibit 4(m)* Form of Amended and Restated Declaration of Trust to be
entered by and among First Security Corporation, as Sponsor,
The First National Bank of Chicago, as Property Trustee,
First Chicago Delaware Inc., as Delaware Trustee, and the
Regular Trustees named therein (included as Annex B to
Exhibit 4(a) hereto).
Exhibit 5(a)* Opinion of Richards, Layton & Finger, P.A. as to the
validity of the Preferred Securities of First Security
Capital II.
Exhibit 5(b)* Opinion of Richards, Layton & Finger, P.A. as to the
validity of the Preferred Securities of First Security
Capital III.
Exhibit 5(c)* Opinion of Richards, Layton & Finger, P.A. as to the
validity of the Preferred Securities of First Security
Capital IV.
Exhibit 5(d)* Opinion of Richards, Layton & Finger, P.A. as to the
validity of the Preferred Securities of First Security
Capital V.
Exhibit 5(e)* Opinion of Ray, Quinney & Nebeker as to the validity of the
Junior Subordinated Debentures and the Guarantee of the
Preferred Securities of First Security Capital II.
Exhibit 5(f)* Opinion of Ray, Quinney & Nebeker as to the validity of the
Junior Subordinated Debentures and the Guarantee of the
Preferred Securities of First Security Capital III.
Exhibit 5(g)* Opinion of Ray, Quinney & Nebeker as to the validity of the
Junior Subordinated Debentures and the Guarantee of the
Preferred Securities of First Security Capital IV.
Exhibit 5(h)* Opinion of Ray, Quinney & Nebeker as to the validity of the
Junior Subordinated Debentures and the Guarantee of the
Preferred Securities of First Security Capital V.
</TABLE>
II-1
<PAGE> 4
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
Exhibit 8(a)* Opinion of Ray, Quinney & Nebeker regarding certain tax
matters (included in Exhibit 5(e) hereto) with respect to
First Security Capital II and the related Junior
Subordinated Debentures.
Exhibit 8(b)* Opinion of Ray, Quinney & Nebeker regarding certain tax
matters (included in Exhibit 5(f) hereto) with respect to
First Security Capital III and the related Junior
Subordinated Debentures.
Exhibit 8(c)* Opinion of Ray, Quinney & Nebeker regarding certain tax
matters (included in Exhibit 5(g) hereto) with respect to
First Security Capital IV and the related Junior
Subordinated Debentures.
Exhibit 8(d)* Opinion of Ray, Quinney & Nebeker regarding certain tax
matters (included in Exhibit 5(h) hereto) with respect to
First Security Capital V and the related Junior Subordinated
Debentures.
Exhibit 12(a)* Computation of Ratio of Earnings to Fixed Charges.
Exhibit 12(b)* Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Dividends.
Exhibit 23(a)* Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5(a) hereto).
Exhibit 23(b)* Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5(b) hereto).
Exhibit 23(c)* Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5(c) hereto).
Exhibit 23(d)* Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5(d) hereto).
Exhibit 23(e)* Consent of Ray, Quinney & Nebeker as to the opinions
included in Exhibits 5(e) and 8(a) hereto (included in
Exhibit 5(e) hereto).
Exhibit 23(f)* Consent of Ray, Quinney & Nebeker as to the opinions
included in Exhibits 5(f) and 8(b) hereto (included in
Exhibit 5(f) hereto).
Exhibit 23(g)* Consent of Ray, Quinney & Nebeker as to the opinions
included in Exhibits 5(g) and 8(c) hereto (included in
Exhibit 5(g) hereto).
Exhibit 23(h)* Consent of Ray, Quinney & Nebeker as to the opinions
included in Exhibits 5(h) and 8(d) hereto (included in
Exhibit 5(h) hereto).
Exhibit 23(i)* Consent of Deloitte & Touche LLP.
Exhibit 24(a)** Powers of Attorney of officers and directors of First
Security Corporation (included on Page II-6 of the
Registration Statement filed on March 30, 1999).
Exhibit 24(b) Powers of Attorney for Regular Trustees of First Security
Capital II (included in paragraph 4 of Exhibit 4(i) hereto.)
Exhibit 24(c) Powers of Attorney for Regular Trustees of First Security
Capital III (included in paragraph 4 of Exhibit 4(j)
hereto.)
Exhibit 24(d) Powers of Attorney for Regular Trustees of First Security
Capital IV (included in paragraph 4 of Exhibit 4(k) hereto.)
Exhibit 24(e) Powers of Attorney for Regular Trustees of First Security
Capital V (included in paragraph 4 of Exhibit 4(l) hereto.)
Exhibit 25(a)* Statement of Eligibility and Qualification on Form T-1 under
the Trust Indenture Act of 1939, as amended ("Form T-1"), of
The First National Bank of Chicago to act as trustee with
respect to the Junior Subordinated Debentures and Guarantees
of First Security.
Exhibit 25(b)* Form T-1 of The First National Bank of Chicago, as trustee,
with respect to the Capital Securities of First Security
Capital II.
Exhibit 25(c)* Form T-1 of The First National Bank of Chicago, as trustee,
with respect to the Preferred Securities of First Security
Capital III.
</TABLE>
II-2
<PAGE> 5
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
Exhibit 25(d)* Form T-1 of The First National Bank of Chicago, as trustee,
with respect to the Preferred Securities of First Security
Capital IV.
Exhibit 25(e)* Form T-1 of The First National Bank of Chicago, as trustee,
with respect to the Preferred Securities of First Security
Capital V.
</TABLE>
- ---------------
* Filed herewith.
** Filed previously.
[The remainder of this page is left blank intentionally; the signature page
follows.]
II-3
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, First Security
Corporation 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
Pre-Effective Amendment No. 1 to be signed on its behalf by the undersigned,
thereunto duly authorized, in Salt Lake City, the State of Utah, on April 15,
1999.
FIRST SECURITY CORPORATION
By: /s/ MORGAN J. EVANS
------------------------------------
Name: Morgan J. Evans
Title: President and Chief
Operating Officer
Pursuant to the requirements of the Securities Act of 1933, this
Pre-Effective Amendment No. 1 has been signed below by the following persons in
the capacities indicated and on April 15, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------- -----
<C> <S>
* Chairman of the Board and Chief Executive
- --------------------------------------------- Officer (Chief Executive Officer)
Spencer F. Eccles
* Executive Vice President and Chief Financial
- --------------------------------------------- Officer (Principal Financial and Accounting
Brad D. Hardy Officer)
* President and Chief Operating Officer
- ---------------------------------------------
Morgan J. Evans
* Director
- ---------------------------------------------
James C. Beardall
* Director
- ---------------------------------------------
Rodney H. Brady
* Director
- ---------------------------------------------
James E. Bruce
* Director
- ---------------------------------------------
Thomas D. Dee II
* Director
- ---------------------------------------------
Dr. David P. Gardner
* Director
- ---------------------------------------------
Robert H. Garff
</TABLE>
II-4
<PAGE> 7
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------- -----
<C> <S>
* Director
- ---------------------------------------------
Jay Dee Harris
* Director
- ---------------------------------------------
Robert T. Heiner
* Director
- ---------------------------------------------
Karen H. Huntsman
* Director
- ---------------------------------------------
G. Frank Joklik
* Director
- ---------------------------------------------
B.Z. Kastler
* Director
- ---------------------------------------------
Dr. J. Bernard Machen
* Director
- ---------------------------------------------
Joseph G. Maloof
* Director
- ---------------------------------------------
Michele Papen-Daniel, Ph.D.
* Director
- ---------------------------------------------
Scott S. Parker
* Director
- ---------------------------------------------
James L. Sorenson
* Director
- ---------------------------------------------
Harold J. Steele
* Director
- ---------------------------------------------
James R. Wilson
</TABLE>
*By: /s/ GARY WINGER
---------------------------
Gary Winger
Attorney-in-Fact
II-5
<PAGE> 8
Pursuant to the requirements of the Securities Act of 1933, First Security
Capital II and First Security Capital III each certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form S-3
and had duly caused this Pre-Effective Amendment No. 1 to be signed on its
behalf by the undersigned, thereunto duly authorized, in Salt Lake City, the
State of Utah, on April 15, 1999.
FIRST SECURITY CAPITAL II
By: **
---------------------------------
Name: Brad D. Hardy
Title: Trustee
By: **
---------------------------------
Name: Scott C. Ulbrich
Title: Trustee
By: **
---------------------------------
Name: David R. Wilson
Title: Trustee
FIRST SECURITY CAPITAL III
By: **
---------------------------------
Name: Brad D. Hardy
Title: Trustee
By: **
---------------------------------
Name: Scott C. Ulbrich
Title: Trustee
By: **
---------------------------------
Name: David R. Wilson
Title: Trustee
**By: /s/ GARY WINGER
--------------------------------
Name: Gary Winger
Title: Attorney-in-Fact
II-6
<PAGE> 9
Pursuant to the requirements of the Securities Act of 1933, First Security
Capital IV and First Security Capital V each certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form S-3
and had duly caused this Pre-Effective Amendment No. 1 to be signed on its
behalf by the undersigned, thereunto duly authorized, in Salt Lake City, the
State of Utah, on April 15, 1999.
FIRST SECURITY CAPITAL IV
By: **
---------------------------------
Name: Brad D. Hardy
Title: Trustee
By: **
---------------------------------
Name: Scott C. Ulbrich
Title: Trustee
By: **
---------------------------------
Name: David R. Wilson
Title: Trustee
FIRST SECURITY CAPITAL V
By: **
---------------------------------
Name: Brad D. Hardy
Title: Trustee
By: **
---------------------------------
Name: Scott C. Ulbrich
Title: Trustee
By: **
---------------------------------
Name: David R. Wilson
Title: Trustee
**By: /s/ GARY WINGER
---------------------------------
Gary Winger
Attorney-in-Fact
II-7
<PAGE> 10
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
Exhibit 1* Form of Underwriting Agreement.
Exhibit 4(a)* Indenture dated as of March 30, 1999 relating to the Junior
Subordinated Debentures by and between First Security
Corporation and The First National Bank of Chicago, as
Indenture Trustee.
Exhibit 4(b)* Form of Guarantee Agreement to be entered by and between
First Security Corporation, as Guarantor, and The First
National Bank of Chicago, as Guarantor Trustee, for the
benefit of the holders of Preferred Securities.
Exhibit 4(c)* Form of Preferred Security Certificate (included as Exhibit
A to Exhibit 4(m) hereto).
Exhibit 4(d)* Form of Junior Subordinated Debenture (included in Article 2
of Exhibit 4(a) hereto).
Exhibit 4(e)* Certificate of Trust of First Security Capital II.
Exhibit 4(f)* Certificate of Trust of First Security Capital III.
Exhibit 4(g)* Certificate of Trust of First Security Capital IV.
Exhibit 4(h)* Certificate of Trust of First Security Capital V.
Exhibit 4(i)* Declaration of Trust of First Security Capital II.
Exhibit 4(j)* Declaration of Trust of First Security Capital III.
Exhibit 4(k)* Declaration of Trust of First Security Capital IV.
Exhibit 4(l)* Declaration of Trust of First Security Capital V.
Exhibit 4(m)* Form of Amended and Restated Declaration of Trust to be
entered by and among First Security Corporation, as Sponsor,
The First National Bank of Chicago, as Property Trustee,
First Chicago Delaware Inc., as Delaware Trustee, and the
Regular Trustees named therein (included as Annex B to
Exhibit 4(a) hereto).
Exhibit 5(a)* Opinion of Richards, Layton & Finger, P.A. as to the
validity of the Preferred Securities of First Security
Capital II.
Exhibit 5(b)* Opinion of Richards, Layton & Finger, P.A. as to the
validity of the Preferred Securities of First Security
Capital III.
Exhibit 5(c)* Opinion of Richards, Layton & Finger, P.A. as to the
validity of the Preferred Securities of First Security
Capital IV.
Exhibit 5(d)* Opinion of Richards, Layton & Finger, P.A. as to the
validity of the Preferred Securities of First Security
Capital V.
Exhibit 5(e)* Opinion of Ray, Quinney & Nebeker as to the validity of the
Junior Subordinated Debentures and the Guarantee of the
Preferred Securities of First Security Capital II.
Exhibit 5(f)* Opinion of Ray, Quinney & Nebeker as to the validity of the
Junior Subordinated Debentures and the Guarantee of the
Preferred Securities of First Security Capital III.
Exhibit 5(g)* Opinion of Ray, Quinney & Nebeker as to the validity of the
Junior Subordinated Debentures and the Guarantee of the
Preferred Securities of First Security Capital IV.
Exhibit 5(h)* Opinion of Ray, Quinney & Nebeker as to the validity of the
Junior Subordinated Debentures and the Guarantee of the
Preferred Securities of First Security Capital V.
Exhibit 8(a)* Opinion of Ray, Quinney & Nebeker regarding certain tax
matters (included in Exhibit 5(e) hereto) with respect to
First Security Capital II and the related Junior
Subordinated Debentures.
Exhibit 8(b)* Opinion of Ray, Quinney & Nebeker regarding certain tax
matters (included in Exhibit 5(f) hereto). with respect to
First Security Capital III and the related Junior
Subordinated Debentures
Exhibit 8(c)* Opinion of Ray, Quinney & Nebeker regarding certain tax
matters (included in Exhibit 5(g) hereto) with respect to
First Security Capital IV and the related Junior
Subordinated Debentures.
</TABLE>
II-8
<PAGE> 11
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
Exhibit 8(d)* Opinion of Ray, Quinney & Nebeker regarding certain tax
matters (included in Exhibit 5(h) hereto) with respect to
First Security Capital V and the related Junior Subordinated
Debentures.
Exhibit 12(a)* Computation of Ratio of Earnings to Fixed Charges.
Exhibit 12(b)* Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Dividends.
Exhibit 23(a)* Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5(a) hereto).
Exhibit 23(b)* Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5(b) hereto).
Exhibit 23(c)* Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5(c) hereto).
Exhibit 23(d)* Consent of Richards, Layton & Finger, P.A. (included in
Exhibit 5(d) hereto).
Exhibit 23(e)* Consent of Ray, Quinney & Nebeker as to the opinions
included in Exhibits 5(e) and 8(a) hereto (included in
Exhibit 5(e) hereto).
Exhibit 23(f)* Consent of Ray, Quinney & Nebeker as to the opinions
included in Exhibits 5(f) and 8(b) hereto (included in
Exhibit 5(f) hereto).
Exhibit 23(g)* Consent of Ray, Quinney & Nebeker as to the opinions
included in Exhibits 5(g) and 8(c) hereto (included in
Exhibit 5(g) hereto).
Exhibit 23(h)* Consent of Ray, Quinney & Nebeker as to the opinions
included in Exhibits 5(h) and 8(d) hereto (included in
Exhibit 5(h) hereto).
Exhibit 23(i)* Consent of Deloitte & Touche LLP.
Exhibit 24(a)** Powers of Attorney of officers and directors of First
Security Corporation (included on Page II-6 of the
Registration Statement filed on March 30, 1999).
Exhibit 24(b) Powers of Attorney for Regular Trustees of First Security
Capital II (included in paragraph 4 of Exhibit 4(i) hereto).
Exhibit 24(c) Powers of Attorney for Regular Trustees of First Security
Capital III (included in paragraph 4 of Exhibit 4(j)
hereto).
Exhibit 24(d) Powers of Attorney for Regular Trustees of First Security
Capital IV (included in paragraph 4 of Exhibit 4(k) hereto).
Exhibit 24(e) Powers of Attorney for Regular Trustees of First Security
Capital V (included in paragraph 4 of Exhibit 4(l) hereto).
Exhibit 25(a)* Statement of Eligibility and Qualification on Form T-1 under
the Trust Indenture Act of 1939, as amended ("Form T-1"), of
The First National Bank of Chicago to act as trustee with
respect to the Junior Subordinated Debentures and Guarantees
of First Security.
Exhibit 25(b)* Form T-1 of The First National Bank of Chicago, as trustee,
with respect to the Capital Securities of First Security
Capital II.
Exhibit 25(c)* Form T-1 of The First National Bank of Chicago, as trustee,
with respect to the Preferred Securities of First Security
Capital III.
Exhibit 25(d)* Form T-1 of The First National Bank of Chicago, as trustee,
with respect to the Preferred Securities of First Security
Capital IV.
Exhibit 25(e)* Form T-1 of The First National Bank of Chicago, as trustee,
with respect to the Preferred Securities of First Security
Capital V.
</TABLE>
- ---------------
* Filed herewith.
** Filed previously.
II-9
<PAGE> 1
EXHIBIT 1
$___,___,___
FIRST SECURITY CAPITAL __
____ % Preferred Securities
as fully and unconditionally guaranteed by
FIRST SECURITY CORPORATION
FORM OF
UNDERWRITING AGREEMENT
____________, ____ [insert date]
To the Underwriters named
in Schedule 1 hereto
Dear Sirs:
First Security Capital __, a statutory business trust formed under
the Business Trust Act of the State of Delaware (the "Trust") and First Security
Corporation, a Delaware corporation (the "Company"), propose to issue and sell
an aggregate of $___ million liquidation amount of ___% Preferred Securities
(the "Preferred Securities"), liquidation amount $__ per Preferred Security (the
"Firm Securities") of the Trust, guaranteed (the "Guarantee" and, together with
the Preferred Securities and the Junior Subordinated Debentures referred to
below, the "Securities") by the Company pursuant to the Guarantee Agreement (the
"Guarantee Agreement") to be entered into by and between the Company and The
First National Bank of Chicago, N.A. ("FNB Chicago"), as guarantee trustee (the
"Guarantee Trustee"), the form of which has been filed as an exhibit to the
Registration Statement (as defined below). In addition, the Trust proposes to
grant to the Underwriters an option to purchase up to an additional $_____
aggregate liquidation amount of the Preferred Securities on the terms and for
the purposes set forth in Section 3 hereof (the "Option Securities"). The Firm
Securities and the Option Securities, if purchased, are hereinafter collectively
called "Preferred Securities." The Company will be the owner of all of the
undivided beneficial ownership interests represented by the common securities
(the "Common Securities") of the Trust. Concurrently with the issuance of the
Preferred Securities and the Company's purchase of all of the Common Securities,
the Trust will invest the proceeds of each thereof in ___% Junior Subordinated
Debentures (the "Junior Subordinated Debentures") issued by the Company. The
Junior Subordinated Debentures are to be issued pursuant to an Indenture (the
"Indenture") to be entered into between the Company and FNB Chicago, as
indenture trustee (the "Indenture Trustee"), the form of which has been filed as
an exhibit to the Registration Statement. This is to confirm the agreement
concerning the purchase of the Securities from the Trust and the Company by the
Underwriters named in Schedule 1 hereto (the "Underwriters"). This is also an
acknowledgment that this Agreement applies only to the Securities and to no
other securities that may be offered or sold
<PAGE> 2
2
by the Company or any of its statutory business trusts under the Registration
Statement and by means of the Prospectus.
1. Representations, Warranties and Agreements of the Company and the
Trust. The Company and the Trust, jointly and severally, represent, warrant and
agree that:
(a) A registration statement on Form S-3, and any amendments
thereto, with respect to the Securities have (i) been prepared by the
Company and the Trust in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the rules
and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, (ii) been filed with
the Commission under the Securities Act; and (iii) become effective under
the Securities Act; and the Indenture, the Declaration (as hereinafter
defined) and the Guarantee Agreement have been qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). Copies of
the registration statement and any amendments to such registration
statement have been delivered by the Company and the Trust to you as the
representatives (the "Representatives") of the Underwriters. As used in
this Agreement, "Effective Time" means the date and the time as of which
the registration statement was declared effective by the Commission;
"Effective Date" means the date of the Effective Time; "Preliminary
Prospectus" means each prospectus included in such registration statement,
or amendments thereof, before it became effective under the Securities Act
and any prospectus filed with the Commission by the Company and the Trust
with the consent of the Representatives pursuant to Rule 424(a) of the
Rules and Regulations; the "Registration Statement" means such
registration statement, as amended at its Effective Time, including any
documents incorporated by reference therein at such time; and "Prospectus"
means such final prospectus, as first filed with the Commission pursuant
to paragraph (1) or (4) of Rule 424(b) of the Rules and Regulations.
Reference made herein to any Preliminary Prospectus or to the Prospectus
shall be deemed to refer to and include any documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities
Act, as of the date of such Preliminary Prospectus or the Prospectus, as
the case may be, and any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any document filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and incorporated by
reference in such Preliminary Prospectus or the Prospectus, as the case
may be; and any reference to any amendment to the Registration Statement
shall be deemed to include any annual report of the Company filed with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after
the Effective Time that is incorporated by reference in the Registration
Statement. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus.
(b) The Registration Statement conforms and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus, when they become effective or were filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Securities Act and the Rules and Regulations and
<PAGE> 3
3
do not and will not, as of the applicable effective date (as to the
Registration Statement and any amendment thereto) and as of the applicable
filing date (as to the Prospectus and any amendment or supplement thereto)
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided that no representation or warranty is made as to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished to the Company and the Trust through the Representatives by or
on behalf of any Underwriter specifically for inclusion therein; the
Indenture, the Declaration and the Guarantee Agreement conform in all
material respects to the requirements of the Trust Indenture Act and the
applicable rules and regulations thereunder.
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act,
and the rules and regulations of the Commission thereunder, and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein, in light of the circumstances under
which they were made, or necessary to make the statements therein not
misleading.
(d) The Company and each of its subsidiaries (as defined in Section
15 hereof) have been duly incorporated and are validly existing as
corporations or as banking associations in good standing under the laws of
their respective jurisdictions of incorporation, are duly qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification
other than where the failure to be so qualified and in good standing could
not reasonably be expected to have a material adverse effect on the
business, financial condition or operating results of the Company and its
subsidiaries taken as a whole, and each has all power and authority
necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged.
(e) The Company has an authorized capitalization as set forth in the
Prospectus and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable (except as set forth in 12 U.S.C.
ss.55) and are owned directly or indirectly by the Company (except for
directors' qualifying shares, if any), free and clear of all liens,
encumbrances, equities or claims.
<PAGE> 4
4
(f) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of
the State of Delaware (the "Delaware Business Trust Act") with the trust
power and authority to own property and conduct its business as described
in the Prospectus; the Trust has conducted and will conduct no business
other than the transactions contemplated by this Agreement as described in
the Prospectus; the Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Declaration of Trust dated as of
__________ and, when executed, the Amended and Restated Declaration of
Trust (the "Declaration") among the Company, FNB Chicago, as property
trustee (the "Property Trustee"), First National Bank of Chicago
(Delaware), as Delaware trustee (the "Delaware Trustee") and the
individuals named therein as the regular trustees (the "Regular Trustees,"
and together with the Property Trustee and the Delaware Trustees, the
"Trustees"), and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust, and the agreements and instruments
contemplated by the Declaration and described in the Prospectus; the Trust
has no liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and the agreements and
instruments contemplated by the Declaration and described in the
Prospectus; and the Trust is not a party or subject to any action, suit or
proceeding of any nature.
(g) The Declaration has been duly authorized by the Company and,
when duly executed and delivered by the Company, as Sponsor, and the
Regular Trustees, assuming due authorization, execution and delivery of
the Declaration by the Property Trustee and the Delaware Trustee, will be
a valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance and transfer,
reorganization, moratorium and other similar laws relating to or affecting
the rights of creditors generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing, and will conform in all material respects to
the description thereof contained in the Prospectus. Each of the Regular
Trustees is an employee of the Company and/or First Security Bank and has
been duly authorized by the Company and/or First Security Bank to serve in
such capacity and to execute and deliver the Declaration.
(h) The Preferred Securities and the Common Securities have been
duly and validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued and fully
paid and the Preferred Securities will be non-assessable; and the
Preferred Securities and the Common Securities, when issued and delivered,
will conform in all material respects to the description thereof contained
in the Prospectus.
(i) The Indenture has been duly authorized, and when duly executed
by the proper officers of the Company, assuming due execution and delivery
by the Indenture Trustee, and delivered by the Company, will constitute a
valid and binding agreement of the Company enforceable against the Company
in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether
<PAGE> 5
5
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; the Junior Subordinated Debentures have been
duly authorized and, when duly executed, authenticated and delivered as
provided in the Indenture, will be duly and validly issued and outstanding
and will constitute valid and binding obligations of the Company entitled
to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing; and the
Junior Subordinated Debentures, when issued and delivered, will conform in
all material respects to the description thereof contained in the
Prospectus.
(j) The Guarantee Agreement has been duly authorized and, when duly
executed and delivered by the proper officers of the Company, assuming due
execution and delivery by the Guarantee Trustee, will constitute a valid
and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing; and the Guarantee Agreement, when executed and delivered,
will conform in all material respects to the description thereof contained
in the Prospectus.
(k) This Agreement has been duly authorized, executed and delivered
by each of the Company and the Trust.
(l) (i) The execution, delivery and performance of this Agreement,
the Declaration, the Guarantee Agreement, the Indenture and the Junior
Subordinated Debentures by the Company and the Trust, as applicable, and
the consummation of the transactions contemplated herein and therein will
not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject and will not
violate or conflict with any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company, any of its subsidiaries or the Trust or any of their properties
or assets, except for such conflict, breach, violations or defaults as
would not, either individually or in the aggregate, have a material
adverse effect on the business, financial condition or operating results
of the Company and its subsidiaries taken as a whole; nor will such
actions result in any violation of the provisions of the charter or
by-laws of the Company or any of its subsidiaries; and except for the
registration of the Securities under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Preferred Securities
by the Underwriters, no consent, approval, authorization or order of, or
<PAGE> 6
6
filing or registration with, any such court or governmental agency or body
is required for the execution, delivery and performance of this Agreement,
the Declaration, the Guarantee Agreement, the Indenture or the Junior
Subordinated Debentures or the consummation of the transactions
contemplated herein and therein, including the issuance of the Common
Securities and the Preferred Securities by the Trust and the purchase of
the Junior Subordinated Debentures by the Trust from the Company.
(m) There are no contracts, agreements or understandings between the
Company or any of its subsidiaries or the Trust and any person granting
such person the right to require the Company or the Trust to include any
other securities in the securities registered pursuant to the Registration
Statement.
(n) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since such date, there has
not been any material change in the capital stock or long-term debt of the
Company or any of its subsidiaries, or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position or results
of operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus.
(o) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus present fairly in
all material respects the financial condition and results of operations of
the entities purported to be shown thereby, at the dates and for the
periods indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved; the pro forma financial information included in the
Prospectus has been prepared in accordance with the requirements of
Regulation S-X promulgated by the Commission and contains all adjustments
necessary for a fair presentation of the information set forth therein;
and the information contained in the Prospectus that constitutes
"forward-looking statements" within the meaning of Section 21E(i)(1) of
the Exchange Act has been prepared on the basis of the Company's best
current judgments and estimations as to future operating plans and
results.
(p) Deloitte & Touche, LLP, who have certified certain financial
statements of the Company, whose report appears in the Prospectus or is
incorporated by reference therein and who have delivered the initial
letter referred to in Section 7(g) hereof, are independent public
accountants as required by the Securities Act and the Rules and
Regulations.
(q) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any
<PAGE> 7
7
of its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, might have a material adverse effect
on the consolidated financial position, stockholders' equity, results of
operations or business of the Company and its subsidiaries taken as a
whole; and to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(r) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(s) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted
by the Rules and Regulations.
(t) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any material
respect, and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any
of its property or assets is subject or (iii) is in violation in any
material respect of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject or has
failed to obtain any material license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership of
its properties or assets or to the conduct of its business.
(u) None of the Trust, the Company or any of the Company's
subsidiaries is an "investment company" within the meaning of such term
under the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and the rules and regulations of the Commission thereunder.
(v) Except as set forth or contemplated in the Prospectus, since the
date as of which information is given in the Registration Statement
through the date hereof, and except as may otherwise be disclosed in the
Registration Statement, as amended or supplemented, neither the Company
nor the Trust has (i) issued or granted any securities, (ii) incurred any
liability or obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of business, (iii)
entered into any transaction not in the ordinary course of business or
(iv) in the case of the Company, declared or paid any dividend on its
capital stock.
(w) To the best of the Company's knowledge, there has been no
storage, disposal, generation, manufacture, refinement, transportation,
handling or treatment of toxic wastes, medical wastes, hazardous wastes or
hazardous substances by the Company or any of its subsidiaries (or, to the
knowledge of the Company, any of their predecessors in interest) at,
<PAGE> 8
8
upon or from any of the properties now or previously owned or leased by
the Company or its subsidiaries in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or which
would require remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any violation or
remedial action which would not have, or could not be reasonably likely to
have, singularly or in the aggregate with all such violations and remedial
actions, a material adverse effect on the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries; there has been no material spill, discharge,
leak, emission, injection, escape, dumping or release of any kind onto
such property or into the environment surrounding such property of any
toxic wastes, medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its subsidiaries or
with respect to which the Company or any of its subsidiaries have
knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not have or would not be
reasonably likely to have, singularly or in the aggregate with all such
spills, discharges, leaks, emissions, injections, escapes, dumpings and
releases, a material adverse effect on the business, financial position or
operating results of the Company and its subsidiaries; and the terms
"hazardous wastes," "toxic wastes," "hazardous substances" and "medical
wastes" shall have the meanings specified in any applicable local, state,
federal and foreign laws or regulations with respect to environmental
protection.
(x) The Company is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended (the "BHC Act").
(y) The deposit accounts of each of the Company's bank subsidiaries
are insured by the Federal Deposit Insurance Corporation (the "FDIC") to
the fullest extent permitted by law and the rules and regulations of the
FDIC; and no proceedings for the termination of such insurance are pending
or threatened.
(z) The Company and each of its subsidiaries are in compliance in
all material respects, as required, with all laws administered by and
regulations of the Board of Governors of the Federal Reserve System, the
FDIC, the Utah Division of Financial Institutions and any other federal or
state bank regulatory authority with jurisdiction over the Company or any
of its subsidiaries (collectively, the "Bank Regulatory Authorities"),
other than where such failures to comply would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole. Neither the
Company nor any of its subsidiaries is a party to any written agreement or
memorandum of understanding with, or a party to any commitment letter or
similar undertaking to, or is subject to any order or directive by, or is
a recipient of any extraordinary supervisory letter from, or has adopted
any board resolutions at the request of, any Bank Regulatory Authority
which materially restricts the conduct of its business, or in any manner
relates to its capital adequacy, its credit policies or its management,
nor have any of them been advised by any Bank Regulatory Authority that it
is contemplating issuing or
<PAGE> 9
9
requesting, or is considering the appropriateness of issuing or
requesting, any such order, decree, agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter or
similar submission or any such board resolutions.
2. Purchase of the Preferred Securities by the Underwriters. (a) The
Trust and the Company hereby agree to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations, warranties and agreements
herein contained, but subject to the conditions hereinafter stated, agrees,
severally and not jointly, to purchase from the Trust, the respective
liquidation amount of Firm Securities set forth in Schedule 1 hereto opposite
their names at a purchase price of ____% of the liquidation amount thereof.
(b) In addition, the Trust and the Company grant to the Underwriters
an option to purchase from the Trust, at a purchase price equal to ___% of the
liquidation amount thereof, up to an additional $_____ aggregate liquidation
amount of Option Securities. Such option is granted for the purpose of covering
over-allotments in the sale of the Firm Securities and is exercisable as
provided in Section 4 hereof. Option Securities shall be purchased severally for
the account of the Underwriters in proportion to the liquidation amounts of Firm
Securities set forth opposite the name of such Underwriters in Schedule 1
hereto. The respective purchase obligations of each Underwriter with respect to
the Option Securities shall be adjusted by the Representatives so that no
Underwriter shall be obligated to purchase Option Securities other than in a
liquidation amount of $25 or an integral multiple thereof.
(c) As compensation to the Underwriters for their commitments
hereunder, the Company shall, on the applicable Closing Date (as defined in
Section 4 hereof) pay to the Representatives, for the accounts of the several
Underwriters, a commission equal to __% of the liquidation amount of the
Preferred Securities to be delivered and purchased on such Closing Date.
(d) The Company and the Trust shall not be obligated to deliver any
of the Securities to be delivered on any Closing Date, except upon payment for
all the Securities to be purchased on such Delivery Date as provided herein.
3. Offering of Preferred Securities by the Underwriters. Upon
authorization by the Representatives of the release of the Firm Securities, the
several Underwriters propose to offer the Firm Securities for sale upon the
terms and conditions set forth in the Prospectus.
4. Delivery of and Payment. (a) Delivery by the Trust of the Firm
Securities to the Representatives for the respective accounts of the several
Underwriters and payment by the Underwriters therefor by wire transfer in
federal (same day) funds to such account as the Company shall specify on behalf
of the Trust, shall take place at the office, on the date and at the time
specified in Schedule 1 hereto, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
9 hereof (such date and time of delivery and payment for the Firm Securities
being herein called the "First Closing Date").
(b) The Firm Securities will be in the form of one or more global
Firm Securities registered in the name of Cede & Co., as nominee of The
Depository Trust Company ("DTC").
<PAGE> 10
10
(c) At any time on or before the thirtieth day after the date
hereof, the option granted in Section 2(b) hereof may be exercised by written
notice being given to the Trust by the Representatives. Such notice shall set
forth the aggregate liquidation amount of Option Securities as to which the
option is being exercised and the date and time, as determined by the
Representatives, when the Option Securities are to be delivered; provided,
however, that this date and time shall not be earlier than the First Closing
Date nor earlier than the third business day after the date on which the option
shall have been exercised nor later than the fifth business day after the date
on which the option shall have been exercised. The date and time the Option
Securities are delivered are sometimes referred to as the "Second Closing Date"
and the First Closing Date and the Second Closing Date are sometimes referred to
as a "Closing Date."
(d) Delivery by the Trust of the Option Securities to the
Representatives for the respective accounts of the several Underwriters and
payment by the Underwriters therefor by wire transfer in federal (same day)
funds to such account as the Company will specify on behalf of the Trust, shall
take place at the office and at the time agreed to in advance by the
Underwriters and the Company, on the Second Closing Date, which date and time
may be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof.
(e) The Option Securities will be in the form of one or more global
Option Securities registered in the name of Cede & Co., as nominee of DTC.
(f) On the First Closing Date and the Second Closing Date, the
Company shall pay, or cause to be paid, the commissions payable on such Closing
Date to the Representatives for the accounts of the Underwriters under Section 2
by wire transfer in federal (same day) funds to such account as the
Representatives shall specify.
5. Further Agreements of the Company and the Trust. The Company and
the Trust, jointly and severally, each agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the Commission's close of
business on the second business day following the execution and
delivery of this Agreement; to make no further amendment or any
supplement to the Registration Statement or to the Prospectus prior
to the Second Closing Date except as permitted herein; to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the Representatives
with copies thereof; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with
the offering or sale of the Securities; to advise the
Representatives, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order
<PAGE> 11
11
or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing
of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) To furnish promptly to the Representatives and to counsel
for the Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits filed
therewith;
(c) To deliver promptly to the Representatives such number of
the following documents as the Representatives shall reasonably
request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits other than this Agreement, the
Indenture, the Declaration, the Guarantee Agreement and the
computation of the ratio of earnings to fixed charges), (ii) each
Preliminary Prospectus, the Prospectus (not later than 10:00 A.M.,
New York City time, on the day following the execution and delivery
of this Agreement) and any amended or supplemented Prospectus (not
later than 10:00 A.M., New York City time, on the day following the
date of such amendment or supplement) and (iii) any document
incorporated by reference in the Prospectus (excluding exhibits
thereto); and, if the delivery of a prospectus is required at any
time after the Effective Time of the Registration Statement in
connection with the offering or sale of the Securities (or any other
securities relating thereto) and if, at such time, any events shall
have occurred 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 in order to make the
statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Securities Act or the
Exchange Act, to notify the Representatives and, upon their request,
to file such document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many copies as
the Representatives may from time to time reasonably request of an
amended or supplemented Prospectus which will correct such statement
or omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that
<PAGE> 12
12
may, in the judgment of the Company or the Representatives, be
required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, any document
incorporated by reference in the Prospectus or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy
thereof to the Representatives and counsel for the Underwriters and
obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date, to make
generally available to the Company's security holders and to deliver
to the Representatives an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section
11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date,
to furnish to the Representatives copies of all materials furnished
by the Company to its shareholders and all public reports and all
reports and financial statements furnished by the Company to the
principal national securities exchange upon which the Company's
common stock may be listed or quoted pursuant to requirements of, or
agreements with, such exchange or to the Commission pursuant to the
Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions in
the United States as the Representatives may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Securities; provided that in
connection therewith, neither the Trust nor the Company shall be
obligated to qualify as a foreign corporation or to file a general
consent to service of process;
(i) For a period of 30 days from the date of the Prospectus,
not to, directly or indirectly, (1) offer for sale, sell, pledge or
otherwise dispose of (or enter into any transaction or device which
is designed to, or could be expected to, result in the disposition
by any person at any time in the future of) any trust certificate or
other securities of the Trust other than the sale of the Common
Securities to the Company and the sale of the Preferred Securities
to the Underwriters, as contemplated by this Agreement and the
Prospectus, any securities that are substantially similar to the
Securities, or any securities that are convertible into, or
exchangeable or exercisable for, any of the foregoing, or (2) enter
into any swap or other derivatives transaction that transfers to
another, in whole or in part, any of the economic benefits or risks
of ownership of the Securities, whether any such transaction
described in clauses (1) and (2) of this paragraph is to be settled
by delivery of the Securities or other
<PAGE> 13
13
securities, in cash or otherwise, in each case without the prior
written consent of __________ [insert name of lead underwriter], on
behalf of the Representatives;
(j) Prior to the Effective Date, to apply for the listing of
the Preferred Securities on the New York Stock Exchange, Inc. and to
use its best efforts to complete that listing, subject only to
official notice of issuance and evidence of satisfactory
distribution, prior to the First Closing Date;
(k) To apply the net proceeds from the sale of the Securities
as set forth in the Prospectus; and
(l) To take such steps as shall be necessary to ensure that
none of the Company, any subsidiary of the Company or the Trust
shall become an "investment company" within the meaning of such term
under the Investment Company Act and the rules and regulations of
the Commission thereunder.
6. Expenses. The Company and the Trust agree to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the Securities and
any taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement, the
Preliminary Prospectus, the Prospectus and any amendments and exhibits thereto;
(c) the costs of distributing the Registration Statement as originally filed and
each amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits thereto), any Preliminary Prospectus, the Prospectus and any
amendment or supplement to the Prospectus or any document incorporated by
reference therein, all as provided in this Agreement; (d) the costs of producing
and distributing this Agreement and any other related documents in connection
with the offering, purchase, sale and delivery of the Securities; (e) any
applicable listing or other fees; (f) the fees and expenses of qualifying the
Securities under the securities laws of the several jurisdictions as provided in
Section 5(h) hereof and of preparing, printing and distributing a Blue Sky
Memorandum (including related fees and expenses of counsel to the Underwriters);
(g) any fees charged by securities rating services for rating the Securities;
(h) the fees and expenses of the Property Trustee, the Guarantee Trustee and the
Indenture Trustee; and (i) all other costs and expenses incident to the
performance of the obligations of the Company and the Trust under this
Agreement; provided that, except as provided in this Section 6 and in Section 11
hereof, the Underwriters shall pay their own costs and expenses, including the
costs and expenses of their counsel, any transfer taxes on the Securities which
they may sell and the expenses of advertising any offering of the Preferred
Securities made by the Underwriters.
7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Closing Date, of the representations and warranties of the Company
and the Trust contained herein, to the performance by the Company and the Trust
of their respective obligations hereunder, and to each of the following
additional terms and conditions:
<PAGE> 14
14
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a) hereof; no stop order
suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission;
and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or
otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to such Closing Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion of
_________________, counsel for the Underwriters, is material or
omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to
make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the
Indenture, the Declaration, the Guarantee Agreement, the Securities,
the Junior Subordinated Debentures, the Registration Statement and
the Prospectus, and all other legal matters relating to this
Agreement and the transactions contemplated hereby, shall be
reasonably satisfactory in all material respects to counsel for the
Underwriters; and the Company and the Trust shall have furnished to
such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(d) Ray, Quinney & Nebeker shall have furnished to the
Representatives its written opinion, as counsel to the Company,
addressed to the Underwriters and dated the applicable Closing Date,
in form and substance satisfactory to the Representatives, to the
effect that:
(1) The Company and each of its subsidiaries have been
duly incorporated and are validly existing as corporations or
banking associations in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified
to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective
ownership or lease of property or the conduct of their
respective businesses requires such qualification (other than
those jurisdictions in which the failure to so qualify would
not have a material adverse effect on the Company or the
Company and its subsidiaries taken as a whole), and have all
power and authority necessary to own or hold their respective
properties and conduct the businesses in which they are
engaged.
(2) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company and has been duly
executed and delivered by the Trust.
<PAGE> 15
15
(3) The Indenture has been duly authorized, executed,
and delivered by the Company and, assuming due authorization,
execution and delivery thereof by the Indenture Trustee,
constitutes a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with
its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in
a proceeding in equity or at law) and implied covenant of good
faith and fair dealing.
(4) The Junior Subordinated Debentures have been duly
authorized, executed and delivered by the Company, and,
assuming due authentification thereof by the Indenture Trustee
and payment and delivery as provided herein, constitute valid
and legally binding obligations of the Company enforceable
against the Company in accordance with their terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
(5) The Guarantee Agreement has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Guarantee
Trustee, constitutes a valid and legally binding obligation of
the Company, enforceable against the Company in accordance
with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(6) The Declaration has been duly authorized, executed
and delivered by the Company in its capacity as sponsor
thereunder.
(7) The execution, delivery and performance of this
Agreement, the Declaration, the Indenture, the Junior
Subordinated Debentures and the Guarantee Agreement by the
Company and the Trust, as applicable, and the consummation of
the transactions contemplated hereby and thereby, will not
constitute a material breach of, or constitute a default
under, any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its
subsidiaries is subject, nor will such actions result in any
violation of the provisions of the character or by-laws of the
Company or any of its subsidiaries or any statute or any
order,
<PAGE> 16
16
rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets,
the effects of which breach, violation or default would be
material to the Company and its subsidiaries taken as a whole.
(8) All of the outstanding shares of capital stock of
each Significant Subsidiary (as such term is defined in Rule
12b-2 of the Commission under the Exchange Act) have been duly
authorized and validly issued and are fully paid and
non-assessable (except as provided in 12 U.S.C. ss.55); except
as disclosed in the Prospectus, all such shares are owned by
the Company (except for any directors' qualifying shares) free
and clear of any pledge, lien, security interest, charge,
claim, equitable right or encumbrance of any kind.
(9) No consent, approval, authorization, order,
registration or qualification of or with any Federal or Utah
governmental agency or body or any Delaware governmental
agency or body acting pursuant to the Delaware General
Corporation Law or, to such counsel's knowledge, any Federal
or Utah court or any Delaware court acting pursuant to the
Delaware General Corporation Law is required for the issue and
sale by the Trust of the Preferred Securities, the issuance by
the Company of the Junior Subordinated Debentures, the
issuance and sale of the Guarantee by the Company and the
compliance by the Company and Trust with all of the provisions
of this Agreement, except for such consents approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the
Underwriters.
(10) The statements contained in the Prospectus under
the captions "The Trust," "Certain Terms of the Preferred
Securities," "Certain Terms of the Guarantee," "Certain Terms
of the Junior Subordinated Debentures," and "Relationship
among the Preferred Securities, the Junior Subordinated
Debentures and the Guarantee," insofar as such statements
purport to constitute summaries of the terms of Declaration,
the Preferred Securities, the Guarantee, the Junior
Subordinated Debentures and the Indenture, as the case may be,
constitute accurate summaries of the terms of the Declaration,
the Preferred Securities, the Junior Subordinated Debentures,
the Guarantee and the Indenture, respectively.
(11) (A) The Trust will be classified as a grantor trust
for United States federal income tax purposes and not as
an association taxable as a corporation;
<PAGE> 17
17
(B) The Junior Subordinated Debentures will be
classified as debt for United States federal income tax
purposes; and
(C) Subject to the qualifications set forth
therein, the statements set forth in the Prospectus
under the caption "Certain United States Federal Income
Tax Consequences," insofar as they purport to constitute
summaries of matters of United States federal tax law
and regulations or legal conclusions with respect
thereto, constitute accurate summaries of the matters
described therein in all material respects.
(12) All descriptions in the Prospectus of contracts and
other documents to which the Company or its subsidiaries are a
party are accurate in all material respects; to the best of
such counsel's knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the
Prospectus other than those described or referred to therein
or incorporated by reference as permitted by the rules and
Regulations.
(13) To the best of such counsel's knowledge, there are
no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the
Registration Statements by the Securities Act or by the Rules
and Regulations which have not been described or filed as
exhibits to the Registration Statements or incorporated
therein by reference as permitted by the Rules and
Regulations.
(14) To the best of such counsel's knowledge, no
contracts, agreements or understandings exist between the
Company and any person granting such person the right to
require the Company to include such Securities in the
securities registered pursuant to the Registration Statement.
(15) To the best of such counsel's knowledge, there is
no pending or threatened legal or governmental proceeding
which is required to be described in the Prospectus which is
not described as required.
(16) The Trust is not a party to or otherwise bound by
any agreement other than those described in the Prospectus.
(17) Neither the Company nor the Trust is required to be
registered as an "investment company" under the Investment
Company Act.
(18) The Company is duly registered as a bank holding
company under the BHC Act; and the deposit accounts of the
Company's bank subsidiaries are insured by the FDIC to the
fullest extent permitted by law
<PAGE> 18
18
and the rules and regulations of the FDIC, and to the best
knowledge of such, counsel no proceedings for the termination
of such insurance are pending or threatened.
(19) The Company and each of its subsidiaries are in
compliance in all material respects with all laws administered
by and regulations of the Bank Regulatory Authorities, other
than where such failures to comply would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole. Neither the Company nor any of its subsidiaries is a
party to any written agreement or memorandum of understanding
with, or a party to any commitment letter or similar
undertaking to, or is subject to any order or directive by, or
is a recipient of any extraordinary supervisory letter from,
or has adopted any board resolutions at the request of, any
Bank Regulatory Authority which materially restricts the
conduct of its business, or in any manner relates to its
capital adequacy, its credit policies or its management, nor
have any of them been advised by any Bank Regulatory Authority
that it is contemplating issuing or requesting (or is
considering the appropriateness of issuing or requesting) any
such order, decree, agreement, memorandum of understanding,
extraordinary supervisory letter, commitment letter or similar
submission, or any such board resolutions.
(20) The Registration Statement was declared effective
under the Securities Act and the Indenture, the Declaration
and the Guarantee were qualified under the Trust Indenture Act
as of the date and time specified in such opinion; the
Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) of the Rules and Regulations
specified in such opinion on the date specified therein; no
stop order suspending the effectiveness of the Registration
Statement has been issued and, to the knowledge of such
counsel, no proceeding for that purpose is pending or
threatened by the Commission.
(21) The Registration Statement, as of the Effective
Date, and the Prospectus, as of its date, and any further
amendments or supplements thereto, as of their respective
dates, made by the Company or the Trust prior to such Closing
Date (other than the financial statements and related
schedules contained therein, as to which such counsel need
express no opinion) complied as to form in all material
respects with the requirements of the Securities Act and the
Rules and Regulations; the documents incorporated by reference
in the Prospectus and any further amendment or supplement to
any such incorporated document made by the Company or the
Trust prior to such Closing Date (other than the financial
statements and related schedules contained therein, as to
which such counsel need express no opinion), complied as to
form in all material respects with the requirements of the
Securities Act or the Exchange Act, as applicable, when
<PAGE> 19
19
they became effective or were filed with the Commission, as
the case may be, and the rules and regulations of the
Commission thereunder; and the Indenture, the Declaration and
the Guarantee conform in all material respects to the
requirements of the Trust Indenture Act and the applicable
rules and regulations thereunder.
In rendering such opinion, such counsel may state that its opinion
is limited to matters governed by the Federal laws of the United States of
America, the laws of the State of Utah and the General Corporation Law of
Delaware and that, as to matters concerning the Trust given in such
opinion, such counsel relied on special Delaware counsel to the Company
and the Trust. Such counsel shall also have furnished to the
Representatives a written statement, addressed to the Underwriters and
dated the Closing Date, in form and substance satisfactory to the
Representatives, to the effect that (x) such counsel has acted as counsel
to the Company in connection with the preparation of the Registration
Statement, and (y) based on the foregoing, no facts have come to the
attention of such counsel which lead it to believe that (I) the
Registration Statement, as of the Effective 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, or that the Prospectus contains any untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (II) any
documents incorporated by reference in the Prospectus, when they were
filed with the Commission, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) Richards, Layton & Finger, P.A. shall have furnished to
the Representatives its written opinion, as special Delaware counsel
to the Company and the Trust, addressed to the Underwriters and
dated the applicable Closing Date, in form and substance
satisfactory to the Representatives, to the effect that:
(1) The Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act; and all filings required under
the laws of the State of Delaware with respect to the creation
and valid existence of the Trust as a business trust have been
made; and under the Declaration and the Delaware Business
Trust Act, the Trust has the trust power and authority to own
property and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under
each of this Agreement, the Preferred Securities and the
Common Securities.
(2) The Declaration constitutes a valid and binding
obligation of the Company and the Trustees, and is enforceable
against the Company and the Trustees, in accordance with its
terms, subject, as to enforcement, to the
<PAGE> 20
20
effect upon the Declaration of (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation,
fraudulent transfer and other similar laws relating to the
rights and remedies of creditors generally, (ii) principles of
equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable
public policy on the enforceability of provisions relating to
indemnification or contribution.
(3) Under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority (i)
to execute and deliver and to perform its obligations under,
this Agreement and (ii) to execute and deliver the Preferred
Securities and the Common Securities.
(4) The Common Securities have been duly authorized by
the Declaration and, when issued and delivered by the Trust to
the Company against payment therefor as described in the
Prospectus, will be validly issued and (subject to the
qualifications set forth in this paragraph) fully paid
undivided beneficial interests in the assets of the Trust
(such counsel may note that the holders of Common Securities
will be subject to the withholding provisions of Section 10.4
of the Declaration, will be required to make payment or
provide indemnity or security as set forth in the Declaration
and will be liable for the debts and obligations of the Trust
to the extent provided in Section 9.1 of the Declaration);
under the Delaware Business Trust Act and the Declaration, the
issuance and sale of the Common Securities is not subject to
preemptive or other similar rights.
(5) The Preferred Securities have been duly authorized
by the Declaration and, when issued and delivered against
payment of the consideration as set forth in the Underwriting
Agreement, the Preferred Securities will be duly and validly
issued and (subject to the qualifications set forth in this
paragraph) fully paid and nonassessable undivided beneficial
interests in the assets of the Trust; the holders of the
Preferred Securities will be entitled to the benefits of the
Declaration and, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware
(such counsel may note that the Holders of Preferred
Securities will be subject to the withholding provisions of
Section 10.4 of the Declaration and will be required to make
payment or provide indemnity or security in connection with
taxes or governmental charges arising from transfers or
exchanges of certificates for Preferred Securities and the
issuance of replacement certificates for Preferred Securities,
and to provide security or indemnity in connection with
requests of or directions to the Property Trustee to exercise
its rights and powers under the Declaration, all as set forth
in the Declaration).
<PAGE> 21
21
(6) Under the Delaware Business Trust Act and the
Declaration, all necessary trust action has been taken to duly
authorize the execution and delivery by the Trust of this
Agreement and the performance by the Trust of its obligations
thereunder.
(7) Under the Delaware Business Trust Act and the
Declaration, the issuance of the Preferred Securities is not
subject to preemptive rights.
(8) The issuance and sale by the Trust of the Preferred
Securities and the Common Securities, the purchase by the
Trust of the Junior Subordinated Debentures, the execution,
delivery and performance by the Trust of this Agreement, the
consummation by the Trust of the transactions contemplated by
this Agreement, the compliance by the Trust with its
obligations thereunder and the performance by the Company, as
sponsor, of its obligations under the Declaration (A) do not
violate (i) any of the provisions of the Certificate of Trust
or the Declaration or (ii) any applicable Delaware law or
administrative regulation and do not require any consent,
approval, license, authorization or validation of, or filing
or registration with, any Delaware legislative, administrative
or regulatory body under the laws or administrative
regulations of the State of Delaware (other that as may be
required under the securities or blue sky laws of the state of
Delaware, as to which such counsel need express no opinion)
and (B) do not require any consent, approval, license,
authorization or validation of, or filing or registration
with, any Delaware legislative, administrative or regulatory
body under the laws or administrative regulations of the State
of Delaware (except that such counsel need express no opinion
with respect to the securities laws of the State of Delaware).
(9) Assuming that the Trust derives no income from or
connected with services provided within the State of Delaware
and has no assets, activities (other than having a Delaware
Trustee as required by the Delaware Business Trust Act and the
filing of documents with the Secretary of State of the State
of Delaware) or employees in the State of Delaware, the
holders of the Preferred Securities (other than those holders
of Preferred Securities who reside or are domiciled in the
State of Delaware) will have no liability for income taxes
imposed by the State of Delaware solely as a result of their
participation in the Trust, and the Trust will not be liable
for any income tax imposed by the State of Delaware.
(f) The Representatives shall have received from
_________________[insert name of counsel for the underwriters],
counsel for the Underwriters, such opinion or opinions, dated the
applicable Closing Date, with respect to the issuance and sale of
the Securities, the Registration Statement, the Prospectus and other
related matters as the Representatives may reasonably require, and
the Company shall have
<PAGE> 22
22
furnished to such counsel such documents as they reasonably request
for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the
Representatives shall have received from Deloitte & Touche, LLP a
letter, in form and substance satisfactory to the Representatives,
addressed to the Underwriters and dated the date hereof (i)
confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, (ii) stating,
as of the date hereof (or, with respect to matters involving changes
or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not
more than five days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information and
other matters ordinarily covered by accountants' "comfort letters"
to underwriters in connection with registered public offerings.
(h) With respect to the letter of Deloitte & Touche, LLP
referred to in the preceding paragraph and delivered to the
Representatives concurrently with the execution of this Agreement
(the "initial letter"), the Company shall have furnished to the
Representatives a letter (the "bring-down letter") of such
accountants, addressed to the Underwriters and dated the applicable
Closing Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission, (ii) stating, as of the date of such bring-down
letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not
more than five days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and
(iii) confirming in all material respects the conclusions and
findings set forth in the initial letter.
(i) The Company shall have furnished to the Representatives a
certificate, dated the applicable Closing Date, of its Chairman of
the Board, its President or an Executive Vice President and its
chief financial officer stating that:
(A) The representations, warranties and agreements of
the Company and the Trust in Section 1 hereof are true and
correct as of such Closing Date; the Company and the Trust
have complied with all their agreements contained herein and
the conditions set forth in paragraphs (a) and (k) of this
Section 7 have been fulfilled, and;
(B) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (i) the
Registration Statement, as of the
<PAGE> 23
23
Effective Date, and the Prospectus, as of each of the
Effective Dates, did not include any untrue statement of a
material fact and did not omit to state a material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which
they were made, not misleading, and (ii) since the Effective
Date, no event has occurred which should have been set forth
in a supplement or amendment to the Registration Statement or
the Prospectus.
(j) (i) Neither the Company nor any of its subsidiaries shall
have sustained, since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus,
any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the
Prospectus and (ii) since such date there shall not have been any
change in the capital stock or long-term debt of the Company or
First Security Bank or any change, or any development involving a
prospective change, in or affecting the general affairs, 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
any such case described in clause (i) or (ii) of this paragraph, is,
in the reasonable judgment of the Representatives, so material and
adverse as to make 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.
(k) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization," as that term is defined
by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations; and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt
securities or preferred stock.
(l) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or in the
over-the-counter market, or trading in any securities of the Company
on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on the New
York Stock Exchange or such market by the Commission, by such
exchange or by any other regulatory body or governmental authority
having jurisdiction, (ii) a banking moratorium shall have been
declared by Federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall
have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse
change in general economic, political or financial conditions (or
<PAGE> 24
24
the effect of international conditions on the financial markets in
the United States shall be such) as to make it, in the judgment of a
majority in interest of the several Underwriters, impracticable or
inadvisable to proceed with the public offering or delivery of the
Securities on the terms and in the manner contemplated in the
Prospectus.
(m) The New York Stock Exchange shall have approved the
Preferred Securities for listing, subject only to official notice of
issuance and evidence of satisfactory distribution.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company and the Trust, jointly and severally, shall
indemnify and hold harmless each Underwriter, its officers and
employees and each person, if any, who controls any Underwriter
within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of the
Securities), to which that Underwriter, officer, employee or
controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any
amendment or supplement thereto, or (B) in any blue sky application
or other document prepared or executed by the Company or the Trust
(or based upon any written information furnished by the Company or
the Trust) specifically for the purpose of qualifying any or all of
the Securities under the securities laws of any state or other
jurisdiction (any such application, document or information being
hereinafter called a "Blue Sky Application"), or (ii) the omission
or alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact
required to be stated therein or necessary to make the statements
therein not misleading or the offering contemplated hereby, and
which is included as part of or referred to in any loss, claim,
damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above and shall reimburse each
Underwriter and each such officer, employee or controlling person
promptly upon demand for any legal or other expenses reasonably
incurred by that Underwriter, officer, employee or controlling
person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company and
the Trust shall not be liable in any such case to the extent that
any such
<PAGE> 25
25
loss, claim, damage, liability or action arises out of, or is based
upon, any untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any such amendment
or supplement, or in any Blue Sky Application in reliance upon and
in conformity with written information concerning such Underwriter
furnished to the Company through the Representatives by or on behalf
of such Underwriter specifically for inclusion therein which
information consists solely of the information specified in Section
8(e) hereof. The foregoing indemnity agreement is in addition to any
liability which the Company or the Trust may otherwise have to any
Underwriter or to any officer, employee or controlling person of
that Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company and the Trust, their
officers and employees, each of their directors and each person, if
any, who controls the Company within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or
the Trust or any such director, officer or controlling person may
become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of
a material fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or (B) in any Blue Sky Application or (ii) the
omission or alleged omission to state in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact
required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company and
the Trust through the Representatives by or on behalf of that
Underwriter specifically for inclusion therein, and shall reimburse
the Company and the Trust and any such director, officer or
controlling person for any legal or other expenses reasonably
incurred by the Company or the Trust or any such director, officer
or controlling person in connection with investigating or defending
or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company and the Trust or any
such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the
indemnifying party shall not relieve it from any liability which it
may have under this
<PAGE> 26
26
Section 8 except to the extent it has been materially prejudiced by
such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section
8. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election
to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other
than reasonable costs of investigation; provided, however, that the
Representatives shall have the right to employ counsel to represent
jointly the Representatives and those other Underwriters and their
respective officers, employees and controlling persons who may be
subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the Company
under this Section 8 if, in the reasonable judgement of the
Representatives, it is advisable for the Representatives and those
Underwriters, officers, employees and controlling persons to be
jointly represented by separate counsel, and in that event the fees
and expenses of such separate counsel shall be paid by the Company.
Each indemnified party, as a condition of the indemnity agreements
contained in Sections 8(a) and 8(b), shall use its best efforts to
cooperate with the indemnifying party in the defense of any such
action or claim. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not
be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or
not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or
(ii) be liable for any settlement of any such action effected
without its written consent (which consent shall not be unreasonably
withheld), but if settled with the written consent of the
indemnifying party or if there be a final judgment of the plaintiff
in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Section 8(a) or 8(b) in respect
of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect thereof, (i)
in such proportion as shall be appropriate to reflect the relative
<PAGE> 27
27
benefits received by the Company and the Trust 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 and the Trust on the one hand
and the Underwriters on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the
Company and the Trust on the one hand and the Underwriters on the
other with respect to such offering shall be deemed to be in the
same proportion as the total net proceeds from the offering of the
Securities purchased under this Agreement (before deducting
expenses) received by the Company and the Trust, on the one hand,
and the total underwriting discounts and commissions received by the
Underwriters with respect to the shares of the Securities purchased
under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the shares of the Securities under
this Agreement, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company and the Trust or
the Underwriters the intent of the parties and their relative
knowledge, access to information and opportunity to correct or
prevent such statement or omission. For purposes of the preceding
two sentences, the net proceeds deemed to be received by the Company
shall be deemed to be also for the benefit of the Trust and
information supplied by the Company shall also be deemed to have
been supplied by the Trust. The Company, the Trust and the
Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were to be determined by
pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which
does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 8(d) shall be deemed to
include, for purposes of this Section 8(d), any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(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 was offered to the public exceeds the
amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any 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 Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section
8(d) are several in proportion to their respective underwriting
obligations and not joint.
<PAGE> 28
28
(e) The Underwriters severally confirm and the Company and the
Trust acknowledge that the statements with respect to the public
offering of the Securities by the Underwriters set forth on the
cover page of and the concession and reallowance figures and the
information in the __________ [insert reference] textual paragraphs
appearing under the caption "Underwriting" in the Prospectus
constitute the only information concerning such Underwriters
furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
9. Defaulting Underwriters. If, on either Closing Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase the
Securities which the defaulting Underwriter agreed but failed to purchase on
such Closing Date in the respective proportions which the aggregate liquidation
amount of Firm Securities set opposite the name of each remaining non-defaulting
Underwriter in Schedule 1 hereto bears to the total aggregate liquidation amount
of Firm Securities set opposite the names of all the remaining non-defaulting
Underwriters in Schedule 1 hereto; provided, however, that the remaining
non-defaulting Underwriters shall not be obligated to purchase any of the
Securities on such Closing Date if the total Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such date exceeds
9.09% of the total Securities to be purchased on such Closing Date, and any
remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the Securities which it agreed to purchase on such Closing Date
pursuant to the terms of Section 2. If the foregoing maximums are exceeded, the
remaining non-defaulting Underwriters, or those other underwriters satisfactory
to the Representatives who so agree, shall have the right, but shall not be
obligated, to purchase, in such proportion as may be agreed upon among them, all
the Securities to be purchased on the Closing Date. If the remaining
Underwriters or other underwriters satisfactory to the Representatives do not
elect to purchase the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase on the applicable Closing Date, this
Agreement (or, with respect to the Second Closing Date, the obligation of the
Underwriters to purchase, and the Trust to sell, the Option Securities) shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company and the Trust, except that the Company and the Trust will continue to be
liable for the payment of expenses to the extent set forth in Sections 6 and 11
hereof. As used in this Agreement, the term "Underwriter" includes, for all
purposes of this Agreement unless the context requires otherwise, any party not
listed in Schedule 1 hereto who, pursuant to this Section 9, purchases the
Securities which a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company or the Trust for damages caused by its
default. If other underwriters are obligated or agree to purchase the Securities
of a defaulting or withdrawing Underwriter, either the Representatives, the
Company or the Trust may postpone the Closing Date for up to seven full business
days in order to effect any changes that in the opinion of counsel for the
Company or counsel for the Underwriters may be necessary in the Registration
Statement, the Prospectus or in any other document or arrangement.
<PAGE> 29
29
10. Termination. The obligations of the Underwriters hereunder may
be terminated by the Representatives by notice given to and received by the
Company and the Trust prior to delivery of and payment for the Firm Securities
if, prior to that time, any of the events described in Sections 7(k), 7(l) or
7(m) shall have occurred or if the Underwriters shall decline to purchase the
Securities for any reason permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If (a) the Trust shall
fail to tender the Securities for delivery to the Underwriters for any reason or
(b) the Underwriters shall decline to purchase the Securities for any reason
permitted by this Agreement, the Company and the Trust shall reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) incurred by the Underwriters in connection with this Agreement and the
proposed purchase of the Securities, and upon demand the Company and the Trust
shall pay the full amount thereof to the Representatives. If this Agreement is
terminated pursuant to Section 9 by reason of the default of one or more
Underwriters, neither the Company nor the Trust shall be obligated to reimburse
any defaulting Underwriter on account of those expenses.
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by
mail, telex or facsimile transmission to_________________________,
Attention: ______________ (Fax: ___-___-____) with a copy, in the
case of any notice pursuant to Section 8(c), to the
________________________;
(b) if to the Company or to the Trust, shall be delivered or
sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Chief
Financial Officer (Fax: 801-359-6928);
All notices to an Underwriter pursuant to Section 8(c) shall be
delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party
hereto by the Representatives upon request. Any such statements,
requests, notices or agreements shall take effect at the time of
receipt thereof. The Company and the Trust shall be entitled to act
and rely upon any request, consent, notice or agreement given or
made on behalf of the Underwriters by ____________ [insert name of
lead underwriter].
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company and
the Trust and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(a) the representations, warranties, indemnities and agreements of the Company
and the Trust contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control any Underwriter within the
meaning of Section 15 of the Securities Act and (b) the indemnity agreement of
the Underwriters contained in Section 8(b) of this
<PAGE> 30
30
Agreement shall be deemed to be for the benefit of directors of the Company,
officers of the Company who have signed the Registration Statement and any
person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 13, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
14. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Trust and the Underwriters
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Securities and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them.
15. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
16. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement among the
Company and the Trust and the Underwriters, please indicate your acceptance in
the space provided for that purpose below.
Very truly yours,
FIRST SECURITY CORPORATION
By:________________________________
Name:
Title:
<PAGE> 31
31
FIRST SECURITY CAPITAL __
By: First Security Corporation, as Sponsor
By:________________________________
Name:
Title:
Accepted:
[INSERT NAMES OF REPRESENTATIVES]
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By:______________________________
By:______________________________
Authorized Representative
<PAGE> 32
SCHEDULE 1
<TABLE>
<CAPTION>
Liquidation
Amount of
Preferred
Underwriters Securities
------------ ----------
<S> <C>
[INSERT NAMES OF UNDERWRITERS]........................... $
___________________________________......................
___________________________________......................
Total............................................ $___,___,___
============
</TABLE>
<PAGE> 1
EXHIBIT 4(a)
================================================================================
INDENTURE
Dated as of March 30, 1999
By and Between
FIRST SECURITY CORPORATION
And
THE FIRST NATIONAL BANK OF CHICAGO,
As Trustee
================================================================================
<PAGE> 2
Reconciliation and tie between the Trust Indenture Act of 1939 (including
cross-references to provisions of Sections 310 to and including 317 which,
pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended by the
Trust Reform Act of 1990, are a part of and govern the Indenture whether or not
physically contained therein) and this Indenture.
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- ----------- -------
<S> <C> <C>
ss.310 (a) (1), (2) and (5)....................................6.9
(a) (3).................................................Not Applicable
(a) (4).................................................Not Applicable
(b).....................................................6.8
........................................................6.10
(c).....................................................Not Applicable
ss.311 (a).....................................................6.13(a)
(b).....................................................6.13(b)
(b) (2).................................................7.3(a) (2)
........................................................7.3(a) (2)
ss.312 (a).....................................................7.1
........................................................7.2(a)
(b).....................................................7.2(b)
(c).....................................................7.2(c)
ss.313 (a).....................................................7.3(a)
(b).....................................................7.3(b)
(c).....................................................7.3(a), 7.3(b)
(d).....................................................7.3(c)
ss.314 (a) (1), (2) and (3)....................................7.4
(a) (4).................................................10.5
(b).....................................................Not Applicable
(c) (1).................................................1.2
(c) (2).................................................1.2
(c) (3).................................................Not Applicable
(d).....................................................Not Applicable
(e).....................................................1.2
(f).....................................................Not Applicable
ss.315 (a).....................................................6.1(a)
(b).....................................................6.2
........................................................7.3(a) (6)
(c).....................................................6.1(b)
(d).....................................................6.1(c)
(d) (1).................................................6.1(a) (1)
(d) (2).................................................6.1(c) (2)
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- ----------- -------
<S> <C> <C>
(d) (3).................................................6.1(c) (3)
(e).....................................................5.14
ss.316 (a).....................................................1.1
(a) (1) (A).............................................5.12
(a) (1) (B).............................................5.13
(a) (2).................................................Not Applicable
(b).....................................................5.8
(c).....................................................1.4(f)
ss.317 (a) (1).................................................5.3
(a) (2).................................................5.4
(b).....................................................10.3
ss.318 (a).....................................................1.7
</TABLE>
- ----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
ii
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
<S> <C>
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION......................................1
SECTION 1.1. Definitions...........................................................1
SECTION 1.2. Compliance Certificate and Opinions...................................9
SECTION 1.3. Forms of Documents Delivered to Trustee..............................10
SECTION 1.4. Acts of Holders......................................................10
SECTION 1.5. Notices, Etc. to Trustee and Company. ...............................12
SECTION 1.6. Notice to Holders; Waiver............................................13
SECTION 1.7. Conflict with Trust Indenture Act....................................13
SECTION 1.8. Effect of Headings and Table of Contents.............................13
SECTION 1.9. Successors and Assigns...............................................13
SECTION 1.10. Separability Clause..................................................13
SECTION 1.11. Benefits of Indenture................................................13
SECTION 1.12. Governing Law........................................................14
SECTION 1.13. Non-Business Days....................................................14
ARTICLE II
SECURITY FORMS .............................................................................14
SECTION 2.1. Forms Generally......................................................14
SECTION 2.2. Form of Face of Security.............................................15
SECTION 2.3. Form of Reverse of Security..........................................18
SECTION 2.4. Additional Provisions Required in Global Security....................21
SECTION 2.5. Form of Trustee's Certificate of Authentication......................21
ARTICLE III
THE SECURITIES..............................................................................21
SECTION 3.1. Title and Terms......................................................21
SECTION 3.2. Denominations........................................................24
SECTION 3.3. Execution, Authentication, Delivery and Dating.......................24
SECTION 3.4. Temporary Securities.................................................25
SECTION 3.5. Registration, Transfer and Exchange..................................26
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities.....................27
SECTION 3.7. Payment of Interest; Interest Rights Preserved.......................28
SECTION 3.8. Persons Deemed Owners................................................30
SECTION 3.9. Cancellation.........................................................30
SECTION 3.10. Computation of Interest..............................................30
SECTION 3.11. Deferrals of Interest Payment Dates..................................30
SECTION 3.12. Right of Set-Off.....................................................31
SECTION 3.13. Agreed Tax Treatment.................................................32
SECTION 3.14. Shortening or Extension of Stated Maturity...........................32
</TABLE>
iii
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 3.15. CUSIP Numbers.......................................................32
SECTION 3.16. Over-Allotment Option...............................................32
ARTICLE IV
SATISFACTION AND DISCHARGE .................................................................33
SECTION 4.1. Satisfaction and Discharge of Indenture..............................33
SECTION 4.2. Application of Trust Money...........................................34
ARTICLE V
REMEDIES ...................................................................................34
SECTION 5.1. Events of Default....................................................34
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment...................35
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee......37
SECTION 5.4. Trustee May File Proofs of Claim.....................................37
SECTION 5.5. Trustee May Enforce Claims Without Possession of Securities..........38
SECTION 5.6. Application of Money Collected.......................................38
SECTION 5.7. Limitation on Suits..................................................39
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium and
Interest; Direct Action by Holders of Capital Securities.............40
SECTION 5.9. Restoration of Rights and Remedies...................................40
SECTION 5.10. Rights and Remedies Cumulative.......................................40
SECTION 5.11. Delay or Omission Not Waiver.........................................40
SECTION 5.12. Control by Holders...................................................41
SECTION 5.13. Waiver of Past Defaults..............................................41
SECTION 5.14. Undertaking for Costs................................................42
SECTION 5.15. Waiver of Usury, Stay or Extension Laws..............................42
ARTICLE VI
THE TRUSTEE ................................................................................42
SECTION 6.1. Certain Duties and Responsibilities..................................42
SECTION 6.2. Notice of Defaults...................................................43
SECTION 6.3. Certain Rights of Trustee............................................44
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities...............45
SECTION 6.5. May Hold Securities..................................................45
SECTION 6.6. Money Held in Trust..................................................45
SECTION 6.7. Compensation and Reimbursement.......................................45
SECTION 6.8. Disqualification; Conflicting Interests..............................46
SECTION 6.9. Corporate Trustee Required; Eligibility..............................46
SECTION 6.10. Resignation and Removal; Appointment of Successor....................47
SECTION 6.11. Acceptance of Appointment by Successor...............................48
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business..........49
</TABLE>
iv
<PAGE> 6
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 6.13. Preferential Collection of Claims Against Company....................49
SECTION 6.14. Appointment of Authenticating Agent..................................50
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY ..........................................52
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders............52
SECTION 7.2. Preservation of Information, Communications to Holders...............52
SECTION 7.3. Reports by Trustee...................................................52
SECTION 7.4. Reports by Company ..................................................53
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE .......................................53
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms.................53
SECTION 8.2. Successor Corporation Substituted. ..................................54
ARTICLE IX
SUPPLEMENTAL INDENTURES ....................................................................55
SECTION 9.1. Supplemental Indentures without Consent of Holders...................55
SECTION 9.2. Supplemental Indentures with Consent of Holders......................56
SECTION 9.3. Execution of Supplemental Indentures.................................57
SECTION 9.4. Effect of Supplemental Indentures....................................57
SECTION 9.5. Conformity with Trust Indenture Act..................................57
SECTION 9.6. Reference in Securities to Supplemental Indentures...................58
ARTICLE X
COVENANTS...................................................................................58
SECTION 10.1. Payment of Principal, Premium and Interest..........................58
SECTION 10.2. Maintenance of Office or Agency.....................................58
SECTION 10.3. Money for Security Payments to be Held in Trust.....................59
SECTION 10.4. Statement as to Compliance..........................................60
SECTION 10.5. Waiver of Certain Covenants.........................................60
SECTION 10.6. Payment of Trust Costs and Expenses.................................60
SECTION 10.7. Additional Covenants................................................61
SECTION 10.8. Calculation of Original Issue Discount..............................62
ARTICLE XI
REDEMPTION OF SECURITIES ...................................................................62
SECTION 11.1. Applicability of This Article.......................................62
SECTION 11.2. Election to Redeem; Notice to Trustee...............................62
</TABLE>
v
<PAGE> 7
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 11.3. Selection of Securities to be Redeemed..............................62
SECTION 11.4. Notice of Redemption................................................63
SECTION 11.5. Deposit of Redemption Price.........................................64
SECTION 11.6. Payment of Securities Called for Redemption.........................64
SECTION 11.7. Right of Redemption of Securities Initially Issued to a Trust.......64
ARTICLE XII
SINKING FUNDS...............................................................................65
SECTION 12.1. Applicability of Article............................................65
SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities...............65
SECTION 12.3. Redemption of Securities for Sinking Fund...........................65
ARTICLE XIII
SUBORDINATION OF SECURITIES.................................................................67
SECTION 13.1. Securities Subordinate to Senior Debt. .............................67
SECTION 13.2. Payment Over of Proceeds Upon Dissolution, Etc......................67
SECTION 13.3. Prior Payment to Senior Debt Upon Acceleration of Securities........68
SECTION 13.4. No Payment When Senior Debt in Default..............................69
SECTION 13.5. Payment Permitted If No Default.....................................70
SECTION 13.6. Subrogation to Rights of Holders of Senior Debt.....................70
SECTION 13.7. Provisions Solely to Define Relative Rights.........................70
SECTION 13.8. Trustee to Effectuate Subordination.................................71
SECTION 13.9. No Waiver of Subordination Provisions...............................71
SECTION 13.10. Notice to Trustee...................................................71
SECTION 13.11. Reliance on Judicial Order or Certificate of Liquidating Agent......72
SECTION 13.12. Trustee Not Fiduciary for Holders of Senior Debt....................72
SECTION 13.13. Rights of Trustee as Holder of Senior Debt; Preservation
of Trustee's Rights.................................................73
SECTION 13.14. Article Applicable to Paying Agents.................................73
SECTION 13.15. Certain Conversions or Exchanges Deemed Payment.....................73
SECTION 13.16. Trust Moneys Not Subordinated.......................................73
ANNEXES
Annex A Form of Declaration of Trust
Annex B Form of Amended and Restated Declaration of Trust
</TABLE>
vi
<PAGE> 8
INDENTURE
This INDENTURE, dated as of March 30, 1999, is entered into by and
between FIRST SECURITY CORPORATION, a Delaware corporation (hereinafter 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, as Trustee (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
junior subordinated debt securities in one or more series (the "Securities") of
substantially the tenor hereinafter provided, including, without limitation,
Securities issued to evidence loans made to the Company of the proceeds from the
issuance from time to time by one or more Delaware statutory business trusts
(each a "Trust," and, collectively, the "Trusts") of preferred interests in such
Trusts (the "Capital Securities") and common interests in such Trusts (the
"Common Securities" and, collectively with the Capital Securities, the "Trust
Securities"), and to provide the terms and conditions upon which the Securities
are to be authenticated, issued and delivered; and
WHEREAS, all things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and 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 any series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
(2) All other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
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(3) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and the term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles which are generally accepted at the date or time of such computation;
provided that when two or more principles are so generally accepted, it shall
mean that set of principles consistent with those in use by the Company; and
(4) The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act" when used with respect to any Holder has the meaning assigned to it
in Section 1.4.
"Additional Interest" means the interest, if any, that shall accrue on any
interest on the Securities of any series the payment of which has not been made
on the applicable Interest Payment Date and which shall accrue at the rate per
annum specified or determined as specified in such Security from the applicable
Interest Payment Date.
"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; provided, however, no Trust to which
Securities have been issued shall be deemed to be an Affiliate of the Company.
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 6.14 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 committee of that board duly authorized to act hereunder.
"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, or such committee of the Board of Directors or officers of the
Company to which authority to act on behalf of the Board of Directors has been
delegated, and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in The City of New York or in Chicago,
Illinois are authorized or required by law or executive order to remain closed
or (iii) a day on which the Corporate Trust Office of the Trustee, or, with
respect to the Securities of a series initially issued to a Trust, the principal
office of the Property Trustee under the related Trust Agreement, is closed for
business.
"Capital Securities" has the meaning specified in the first recital of
this Indenture.
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"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 Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Securities" has the meaning specified in the first recital of this
Indenture.
"Common Stock" means the common stock, par value $1.25 per share, of the
Company.
"Company" means the Person named as the "Company" in the first paragraph
of this Indenture until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" and "Company Order" mean, respectively, the written
request or order signed in the name of the Company by the Chairman of the Board
of Directors, the Vice Chairman of the Board of Directors, its President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which at the date hereof is located at One First National Plaza, Suite 0126,
Chicago, Illinois 60670-0126, Attention: Corporate Trust Services Division.
"corporation" includes a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning assigned to it in Section 3.7.
"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 by the Company pursuant to Section 3.1 with
respect to such series (or any successor thereto).
"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 5.2.
"Distributions" means, with respect to the Trust Securities issued by a
Trust, amounts payable in respect of such Trust Securities as provided in the
related Trust Agreement and referred to therein as "Distributions."
"Dollar" means the currency of the United States of America that, as at
the time of payment, is legal tender for the payment of public and private
debts.
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"Event of Default," unless otherwise specified in the supplemental
indenture creating a series of Securities has the meaning assigned to it in
Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning assigned to it in Section 1.4(f).
"Extension Period" has the meaning assigned to it in Section 3.11.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System, as from time to time constituted, or if at any time after the execution
of this Indenture the Federal Reserve is not existing and performing the duties
now assigned to it, then the body performing such duties at such time.
"Global Security" means a Security in the form prescribed in Section 2.4
evidencing all or part of a series of Securities, issued to the Depositary or
its nominee for such series, and registered in the name of such Depositary or
its nominee.
"Guarantee" means, with respect to the Trust Securities issued by a Trust,
the guarantee by the Company of Distributions on such Trust Securities to the
extent provided in the Guarantee Agreement.
"Guarantee Agreement" means, with respect to the Trust Securities issued
by a Trust, the Guarantee Agreement substantially in the form attached hereto as
Annex C, or substantially in such form as may be specified as contemplated by
Section 3.1 with respect to the Securities of any series, in each case as
amended from time to time.
"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of each particular series of Securities established as
contemplated by Section 3.1.
"Interest Payment Date" means as to each series of Securities the Stated
Maturity of an installment of interest on such Securities.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Investment Company Event" means, with respect to a Trust, the receipt by
the Trust of an opinion of a nationally recognized independent counsel to the
effect that, as a result of the occurrence of a change in law or regulation or a
written change in interpretation or application
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of law or regulation by any legislative body, court, governmental agency or
regulatory authority (a "Change in 1940 Act Law"), there is more than an
insubstantial risk that the Trust is or will be considered an "investment
company" that is required to be registered under the Investment Company Act,
which Change in 1940 Act Law becomes effective on or after the date of issuance
of the Capital Securities of such Trust.
"Junior Subordinated Payment" has the meaning assigned to it in Section
13.2.
"Maturity" means, when used with respect to any Security, the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Moody's" means Moody's Investors Service, Inc.
"Notice of Default" means a written notice of the kind specified in
Section 5.1(3).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors, a Vice Chairman of the Board of Directors, 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.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Option Securities" has the meaning assigned to it in Section 3.16.
"Original Issue Date" means the date of issuance specified as such in each
Security.
"Outstanding" means, when used in reference to any Securities, 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;
(ii) Securities for whose payment or redemption price money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent in trust for the Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other Securities
have been authenticated and delivered or which have been paid pursuant to
Section 3.6, unless proof satisfactory to the Trustee is presented that any such
Securities are held by Holders in whose hands such Securities are valid, binding
and legal obligations of the Company;
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provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee actually 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 such other obligor. Upon the
written request of the Trustee, the Company shall furnish to the Trustee
promptly an Officers' Certificate listing and identifying all Securities, if
any, known by the Company to be owned or held by or for the account of the
Company or any other obligor on the Securities or any Affiliate of the Company
or such obligor, and, subject to the provisions of Section 6.1, the Trustee
shall be entitled to accept such Officers' Certificate as conclusive evidence of
the facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination.
"Paying Agent" means the Trustee or any Person authorized by the Company
to pay the principal of (or premium, if any) 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" means, with respect to the Securities of any series,
the place or places where the principal of (and premium, if any) and interest on
the Securities of such series are payable pursuant to Sections 3.1 and 3.11.
"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 3.6 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Proceeding" has the meaning assigned to it in Section 13.2.
"Property Trustee" means, in respect of any Trust, the commercial bank or
trust company identified as the "Property Trustee" in the related Trust
Agreement, solely in its capacity as Property Trustee of such Trust under such
Trust Agreement and not in its individual capacity, or its successor in interest
in such capacity, or any successor property trustee appointed as therein
provided.
"Redemption Date" means, when used with respect to any Security to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
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"Redemption Price" means, when used with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture.
"Regulatory Capital Event" means the receipt by the Trust of an opinion of
independent bank regulatory counsel experienced in such matters to the effect
that, as a result of (a) any amendment to or change (including any announced
prospective change) in the laws (or any regulations thereunder) of the United
States or any rules, guidelines or policies of the Federal Reserve or (b) any
official administrative pronouncement or judicial decision for interpreting or
applying such laws or regulations which amendment or change is effective or such
pronouncement or decision is announced on or after the date of original issuance
of the Capital Securities, the Capital Securities do not constitute, or within
90 days of the date thereof, will not constitute Tier I capital (or its then
equivalent); provided, however, that the distribution of the Securities in
connection with the liquidation of the Trust by the Debenture Issuer shall not
in and of itself constitute a Regulatory Capital Event unless such liquidation
shall have occurred in connection with a Tax Event or an Investment Company
Event.
"Regular Record Date" for the interest payable on any Interest Payment
Date with respect to the Securities of a series means, unless otherwise provided
pursuant to Section 3.1 with respect to Securities of a series, (i) in the case
of Securities of a series represented by one or more Global Securities, the
Business Day next preceding such Interest Payment Date and (ii) in the case of
Securities of a series not represented by one or more Global Securities, the
date which is fifteen days next preceding such Interest Payment Date (whether or
not a Business Day).
"Regular Trustee" means, in respect of any Trust, each Person identified
as an "Regular Trustee" in the related Trust Agreement, solely in such Person's
capacity as Regular Trustee of such Trust under such Trust Agreement and not in
such Person's individual capacity, or any successor Regular Trustee appointed as
therein provided.
"Responsible Officer" means, when used with respect to the Trustee, any
officer of the Trustee assigned by the Trustee from time to time to administer
its corporate trust matters.
"Rights Plan" means a plan of the Company providing for the issuance by
the Company to all holders of its Common Stock of rights entitling the holders
thereof to subscribe for or purchase shares of Common Stock or any class or
series of preferred stock of the Company, which rights (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable and (iii)
are also issued in respect of future issuances of Common Stock, in each case
until the occurrence of a specified event or events.
"S&P" means Standard & Poor's Ratings Services, a division of the McGraw
Hill Companies, Inc.
"Securities" or "Security" means any debt securities or debt security, as
the case may be, authenticated and delivered under this Indenture.
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"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.5.
"Senior Debt" means with respect to any Person, whether recourse is to all
or a portion of the assets of such Person and whether or not contingent, (i)
every obligation of such Person for money borrowed, (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments
of such Person, including obligations incurred in connection with the
acquisition of property, assets or businesses, (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person, (iv)
every obligation of such Person issued or assumed as the deferred purchase price
of property or services, (v) every capital lease obligation of such Person, (vi)
every obligation of such Person for claims (as defined in Section 101(4) of the
United States Bankruptcy Code of 1978, as amended) in respect of derivative
products such as interest and foreign exchange rate contracts, commodity
contracts, options and swaps and similar arrangements and (vii) every obligation
of the type referred to in clauses (i) through (vi) of another Person and all
dividends of another Person the payment of which, in either case, such Person
has guaranteed or is responsible or liable, directly or indirectly, as obligor
or otherwise; provided that "Senior Debt" shall not include (a) any obligations
which, by their terms, are expressly stated to rank pari passu in right of
payment with, or to not be superior in right of payment to, the Securities, (b)
any obligations of the Company which when incurred and without respect to any
election under Section 1111(b) of the United States Bankruptcy Code of 1978, as
amended, was without recourse to the Company, (c) any obligations of the Company
to any of its subsidiaries, (d) obligations of the Company to any employee or
(e) any obligations in respect of debt securities issued to any trust, or a
trustee of such trust, partnership or other entity affiliated with the Company
that is a financing entity of the Company in connection with the issuance by
such financing entity of securities that are similar to the Capital Securities,
or (f) trade accounts payable or accrued liabilities arising in the ordinary
course of business.
"Special Record Date" means, for the payment of any Defaulted Interest, a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon means the date specified
pursuant to the terms of such Security as the date on which the principal of
such Security or such installment of interest is due and payable, in the case of
such principal, as such date may be shortened or extended as provided pursuant
to the terms of such Security and this Indenture.
"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.
For purposes of this definition, "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.
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"Tax Event" means the receipt by the Trust of an opinion of independent
tax counsel experienced in such matters, to the effect that, as a result of (a)
any amendment to, change in or announced proposed change in the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or (b) any official administrative
pronouncement, action or judicial decision interpreting or applying such laws or
regulations, which such amendment or change becomes effective or proposed
change, pronouncement, action or decision is announced on or after the Closing
Date, there is more than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date of such opinion, subject to the United States federal
income tax with respect to income received or accrued on the Debentures, (ii)
interest payable by the Debenture Issuer on the Debentures is not, or within 90
days of the date of such opinion, will not be, deductible by the Debenture
Issuer, in whole or in part, by the Debenture Issuer for United States federal
income tax purposes, or (iii) the Trust is, or will be within 90 days of the
date of such opinion, subject to more than a de minimis amount of other taxes,
duties or other governmental charges.
"Trust" has the meaning specified in the first recital of this Indenture.
"Trust Agreement" means, with respect to a Trust, a Declaration of Trust
substantially in the form attached hereto as Annex A, as amended by the form of
Amended and Restated Declaration of Trust substantially in the form attached
hereto as Annex B, or substantially in such form as may be specified as
contemplated by Section 3.1 with respect to the Securities of any series, in
each case as amended from time to time.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder and, if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C. ss.
77aaa-77bbb), as amended and as in effect on the date as of this Indenture,
except as provided in Section 9.5.
"Trust Securities" has the meaning specified in the first recital of this
Indenture.
"Vice President" means, when used with respect to the Company, any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
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SECTION 1.2. Compliance Certificate and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent
(including covenants, compliance with which constitutes a condition precedent),
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent (including covenants compliance with which
constitute a condition precedent), if any, have been complied with, except that
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than the certificates provided
pursuant to Section 10.5) 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
or caused to be 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 1.3. Forms of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer or counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his or her certificate or
<PAGE> 18
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opinion is based are erroneous. Any 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 rendering such Opinion of 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 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given to or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent or proxy duly
appointed by such Holder in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
is or 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 or proxy shall be
sufficient for any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(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 the certificate of any 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 Person acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority.
(c) The fact and date of the execution by any Person 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 and in
accordance with such reasonable rules as the Trustee may determine.
(d) The Securities Register shall be conclusive proof of the ownership of
Securities by a Holder.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the transfer
thereof or in exchange therefor or in lieu thereof
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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) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
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 of Securities of such series, provided that the Company may not set a
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of the relevant Outstanding Securities on such
record date, and no other Holders, shall be entitled to take the relevant
action, whether or not such Holders remain Holders after such record date,
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of the relevant Outstanding Securities on such record date. Nothing in
this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of the relevant
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of the relevant Securities in the manner set forth in Section 1.6.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 5.2, (iii) any request to institute proceedings referred
to in Section 5.7(2) or (iv) any direction referred to in Section 5.12, in each
case with respect to the relevant Securities. If any record date is set pursuant
to this paragraph, the Holders of the relevant Outstanding Securities on such
record date, and no other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders
after such record date, provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of the relevant Outstanding Securities on such
record date. Nothing in this paragraph shall be construed to prevent the Trustee
from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be cancelled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of the
relevant Outstanding Securities on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Company in writing and to
each Holder of the relevant Securities in the manner set forth in Section 1.6.
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With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day, provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of the relevant Outstanding Securities in the manner set forth in
Section 10.6, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
SECTION 1.5. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, any holder of Capital Securities or 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 or such other office or agency designated by the Trustee pursuant hereto,
or
(2) the Company by the Trustee, any Holder or any holder of Capital
Securities shall be sufficient for every purpose (except as otherwise provided
in Section 5.1) hereunder 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 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at the address of such Holder as it appears in the Securities
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
<PAGE> 21
14
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.
SECTION 1.7. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture
Act through operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
In case any provision of 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 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors and
assigns, the holders of Senior Debt, the Holders of the Securities and, to the
extent expressly provided in Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and 9.2,
the holders of Capital Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
<PAGE> 22
15
SECTION 1.12. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 1.13. Non-Business Days.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or the Securities) payment of interest or
principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day (and no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be, until such next succeeding Business Day) except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day (in each case with the same force
and effect as if made on the Interest Payment Date or Redemption Date or at the
Stated Maturity).
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities of each series and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article, or
in such other form or forms 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 applicable tax laws or the rules of any
securities exchange or automated quotation system on which the Securities may be
listed or traded 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 3.3 with respect to the authentication and delivery of
such Securities.
The Trustee's certificates of authentication shall be substantially in the
form set forth in this Article.
<PAGE> 23
16
The definitive Securities shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods, if required by any
securities exchange or automated quotation system on which the Securities may be
listed or traded, on a steel engraved border or steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
or automated quotation system on which the Securities may be listed or traded,
all as determined by the officers executing such Securities, as evidenced by
their execution of such securities.
SECTION 2.2. Form of Face of Security.
FIRST SECURITY CORPORATION
__% Junior Subordinated Debentures due __________
No. ____________________ CUSIP ___________
$_______________________
FIRST SECURITY CORPORATION, a corporation organized and existing under the
laws of the State of Delaware (hereinafter 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 __________ __, ____[;
provided that the Company may, subject to certain conditions set forth in
Section 3.14 of the Indenture, (i) shorten the Stated Maturity of the principal
of this Security to a date not earlier than __________, and (ii) extend the
Stated Maturity of the principal of this Security at any time on one or more
occasions, but in no event to a date later than __________]. The Company further
promises to pay interest on said principal sum from _____________, _________ or
from the most recent interest payment date (each such date, an "Interest Payment
Date") on which interest has been paid or duly provided for, [monthly]
[quarterly] [semi-annually] [if applicable, insert - (subject to deferral as set
forth herein)] in arrears on [insert applicable Interest Payment Dates] of each
year, commencing ____________, _______________, at the rate of ___% per annum,
until the principal hereof shall have become due and payable, [if applicable,
insert - plus Additional Interest, if any,] until the principal hereof is paid
or duly provided for or made available for payment [if applicable, insert - and
on any overdue principal and (without duplication and to the extent that payment
of such interest is enforceable under applicable law) on any overdue installment
of interest at the rate of ____% per annum, compounded [monthly] [quarterly]
[semi-annually]. The amount of interest payable for any period shall be computed
on the basis of twelve 30-day months and a 360- day year. The amount of interest
payable for any partial period shall be computed on the basis of the number of
days elapsed in a 360-day year of twelve 30-day months. In the event that any
date on which interest is payable on this Security is not a Business Day, then a
payment of the interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date the payment was originally payable. A "Business Day" shall
<PAGE> 24
17
mean any day other than (i) a Saturday or Sunday, (ii) a day on which banking
institutions in The City of New York or in Chicago, Illinois are authorized or
required by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office of the Trustee [if applicable, insert - or the principal
office of the Property Trustee under the Trust Agreement hereinafter referred to
for FIRST SECURITY CAPITAL _,] is closed for business. The interest installment
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the 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 installment, which
shall be the ________________ [insert definition of Regular Record Dates]. Any
such interest installment not so punctually paid or duly provided for shall
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 or automated quotation system on which the Securities of
this series may be listed or traded, and upon such notice as may be required by
such exchange or self-regulatory organization, all as more fully provided in
said Indenture.
[If applicable, insert - So long as no Event of Default has occurred and
is continuing, the Company shall have the right at any time during the term of
this Security to defer payment of interest on this Security, at any time or from
time to time, for up to ______ consecutive [monthly] [quarterly] [semi-annual]
interest payment periods with respect to each deferral period (each an
"Extension Period"), during which Extension Periods the Company shall have the
right to make partial payments of interest on any Interest Payment Date, and at
the end of which the Company shall pay all interest then accrued and unpaid
(together with Additional Interest thereon to the extent permitted by applicable
law); provided, however, that no Extension Period shall extend beyond the Stated
Maturity of the principal of this Security; provided, further, that during any
such Extension Period, the Company shall not, and shall not permit any
Subsidiary of the Company to, (i) declare or pay any dividends or distributions
on or redeem, purchase, acquire or make a liquidation payment with respect to,
any of the Company's capital stock or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt security
of the Company that ranks pari passu with or junior in interest to this Security
or (iii) make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any Subsidiary of the Company if such
guarantee ranks pari passu with or junior in interest to this Security (other
than (a) dividends or distributions in the Company's capital stock, (b) any
declaration of a dividend in connection with the implementation of a Rights Plan
or the redemption or repurchase of any rights distributed pursuant to a Rights
Plan, (c) payments under the Guarantee with respect to this Security, and (d)
purchases of Common Stock related to the issuance of Common Stock or rights
under any of the Company's benefit plans for its directors, officers or
employees, related to the issuance of Common Stock or rights under a dividend
reinvestment and stock purchase plan, or related to the issuance of Common Stock
(or securities convertible or exchangeable for Common Stock) as consideration in
an acquisition transaction that
<PAGE> 25
18
was entered into prior to the commencement of such Extension Period. Prior to
the termination of any such Extension Period, the Company may further defer the
payment of interest, provided that no Extension Period shall exceed __
consecutive [months] [quarters] [semi-annual] periods or extend beyond the
Stated Maturity of the principal of this Security. Upon the termination of any
such Extension Period and upon the payment of all accrued and unpaid interest
and any Additional Interest then due, the Company may elect to begin a new
Extension Period, subject to the above requirements. No interest shall be due
and payable during an Extension Period except at the end thereof. The Company
shall give the Holder of this Security and the Trustee notice of its election to
begin any Extension Period at least one Business Day prior to the next
succeeding Interest Payment Date on which interest on this Security would be
payable but for such deferral [if applicable, insert - or, with respect to the
Securities issued to a Trust, so long as such Securities are held by such Trust,
prior to the earlier of (i) the next succeeding date on which Distributions on
the Capital Securities would be payable but for such deferral or (ii) the date
the Administrative Trustees are required to give notice to any securities
exchange or other applicable self-regulatory organization or to holders of such
Capital Securities of the record date or the date such Distributions are
payable, but in any event not less than one Business Day prior to such record
date]].
Payment of principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the United States, 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 (i) by check mailed to the address
of the Person entitled thereto as such address shall appear in the Securities
Register or (ii) by wire transfer in immediately available funds at such place
and to such account as may be designated in writing at least 15 days before the
relevant Interest Payment Date by the Person entitled thereto as specified in
the Securities Register].
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payments to the prior payment
in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such actions as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Debt, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this 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.
<PAGE> 26
19
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.
FIRST SECURITY CORPORATION
By: _______________________________________
[President or Executive Vice President]
Attest:
_________________________________________
[Secretary or Assistant Secretary]
SECTION 2.3. 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 March __, 1999 (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 Trustee, the Company 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
$_____________].
All terms used in this Security that are defined in the Indenture [if
applicable, insert - or in the Amended and Restated Declaration of Trust, dated
as of _______ __, ____, as amended (the "Trust Agreement"), for [FIRST SECURITY
CAPITAL ,] among First Security Corporation, as Depositor, and the Trustees
named therein, shall have the meanings assigned to them in the Indenture [if
applicable, insert - or the Trust Agreement, as the case may be].
[If applicable, insert - The Company may at any time, at its option, on or
after _________, ____, and subject to the terms and conditions of Article XI of
the Indenture, redeem this Security in whole at any time or in part from time to
time, without premium or penalty, at a redemption price equal to 100% of the
principal amount thereof plus accrued and unpaid interest [if applicable, insert
including Additional Interest, if any] to the Redemption Date.]
<PAGE> 27
20
[If applicable, insert - Upon the occurrence and during the continuation
of a Tax Event, Investment Company Event or a Regulatory Capital Event in
respect of a Trust, the Company may, at its option, at any time within 90 days
of the occurrence of such Tax Event, Investment Company Event or Regulatory
Capital Event redeem this Security, in whole but not in part, subject to the
provisions of Section 11.7 and the other provisions of Article XI of the
Indenture, at a redemption price equal to 100% of the principal amount thereof
plus accrued and unpaid interest, including Additional Interest, if any, to the
Redemption Date.]
In the event of redemption of this Security in part only, a new Security
or Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Company with certain
conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or
indentures for the purpose of modifying in any manner the rights and obligations
of the Company and of the Holders of the Securities, with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of all series to be affected by such supplemental indenture. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities of all 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 hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Security.
[If the Security is not a Discount Security, -As provided in and subject
to the provisions of the Indenture, if an Event of Default with respect to the
Securities of this 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 this series may declare the
principal amount of all the Securities of this series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), provided that, in the case of the Securities of this series issued
to a Trust, if upon an Event of Default, the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities of this series fails
to declare the principal of all the Securities of this series to be immediately
due and payable, the holders of at least 25% in aggregate Liquidation Amount of
the Capital Securities then outstanding shall have such right by a notice in
writing to the Company and the Trustee; and upon any such declaration the
principal amount of and the accrued interest (including any Additional Interest)
on all the Securities of this series shall become immediately due and payable,
provided that the
<PAGE> 28
21
payment of principal and interest (including any Additional Interest) on such
Securities shall remain subordinated to the extent provided in Article XIII of
the Indenture.]
[If the Security is a Discount Security, -As provided in and subject to
the provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than such portion
of the principal amount as may be specified in the terms of this series may
declare an amount of principal of the Securities of this series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), provided that, in the case of the Securities of this
series issued to a Trust, if upon an Event of Default, the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of this series fails to declare the principal of all the Securities of this
series to be immediately due and payable, the holders of at least 25% in
aggregate Liquidation Amount of the Capital Securities then outstanding shall
have such right by a notice in writing to the Company and the Trustee. Such
amount shall be equal to - insert formula for determining the amount. Upon any
such declaration, such amount of the principal of and the accrued interest
(including any Additional Interest) on all the Securities of this series shall
become immediately due and payable, provided that the payment of principal and
interest (including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XIII of the Indenture. Upon
payment (i) of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal and overdue interest (in each case to the
extent that the payment of such interest shall be legally enforceable), all of
the Company's obligations in respect of the payment of the principal of and
interest, if any, on this Security shall terminate.]
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 registrable in the Securities
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company maintained under Section 10.2 of the Indenture
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees. 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
<PAGE> 29
22
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
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 such series of a different authorized denomination, as
requested by the Holder surrendering the same.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 2.4. Additional Provisions Required in Global Security.
Any Global Security issued hereunder shall, in addition to the provisions
contained in Sections 2.2 and 2.3, bear a legend in substantially the following
form:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This 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 may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary."
SECTION 2.5. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the mentioned Indenture.
Dated:
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
By: _______________________________
Authorized Signatory
ARTICLE III
THE SECURITIES
<PAGE> 30
23
SECTION 3.1. Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series. The
following matters shall be established in or pursuant to a Board Resolution, and
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of a series:
(a) the title of the Securities of such series, which shall distinguish
the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such 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 3.4, 3.5, 3.6, 9.6 or 11.6 and except for any
Securities which, pursuant to the last paragraph of Section 3.3, are deemed
never to have been authenticated and delivered hereunder); provided, however,
that the authorized aggregate principal amount of such series may be increased
above such amount by a Board Resolution to such effect;
(c) the Stated Maturity or Maturities on which the principal of the
Securities of such series is payable or the method of determination thereof;
(d) the rate or rates, if any, at which the Securities of such series
shall bear interest, if any, the rate or rates and extent to which Additional
Interest, if any, shall be payable in respect of any Securities of such series,
the Interest Payment Dates on which such interest shall be payable, the right,
pursuant to Section 3.11 or as otherwise set forth therein, of the Company to
defer or extend an Interest Payment Date, and the Regular Record Date for the
interest payable on any Interest Payment Date or the method by which any of the
foregoing shall be determined;
(e) the place or places where the principal of (and premium, if any) and
interest on the Securities of such series shall be payable, the place or places
where the Securities of such series may be presented for registration of
transfer or exchange, and the place or places where notices and demands to or
upon the Company in respect of the Securities of such series may be made;
(f) the period or periods within which, or the date or dates on which, if
any, the price or prices at which and the terms and conditions upon which the
Securities of such series may be redeemed, in whole or in part, at the option of
the Company;
(g) the obligation or the right, if any, of the Company to redeem, repay
or purchase the Securities of such series pursuant to any sinking fund,
amortization or analogous provisions or upon the happening of a specified event,
or at the option of a Holder thereof, and the period or periods within which,
the price or prices at which, the currency or currencies (including
<PAGE> 31
24
currency unit or units) in which and the other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
(h) the denominations in which any Securities of such series shall be
issuable, if other than denominations of $25 and any integral multiple thereof;
(i) if other than Dollars, the currency or currencies (including currency
unit or units) in which the principal of (and premium, if any) and interest, if
any, on the Securities of the series shall be payable, or in which the
Securities of the series shall be denominated;
(j) the additions, modifications or deletions, if any, in the Events of
Default or covenants of the Company set forth herein with respect to the
Securities of such series;
(k) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof;
(l) the additions or changes, if any, to this Indenture with respect to
the Securities of such series as shall be necessary to permit or facilitate the
issuance of the Securities of such series in bearer form, registrable or not
registrable as to principal, and with or without interest coupons;
(m) any index or indices used to determine the amount of payments of
principal of and premium, if any, on the Securities of such series or the manner
in which such amounts will be determined;
(n) whether the Securities of the series, or any portion thereof, shall
initially be issuable in the form of a temporary Global Security representing
all or such portion of the Securities of such series and provisions for the
exchange of such temporary Global Security for definitive Securities of such
series;
(o) if applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in such case,
the respective Depositaries for such Global 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 2.4 and any circumstances in addition to or in
lieu of those set forth in Section 3.5 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer of
such Global Security in whole or in part may be registered, in the name or names
of Persons other than the Depositary for such Global Security or a nominee
thereof;
(p) the appointment of any Paying Agent or Agents for the Securities of
such series;
(q) the terms of any right to convert or exchange Securities of such
series into any other securities or property of the Company, and the additions
or changes, if any, to this Indenture with respect to the Securities of such
series to permit or facilitate such conversion or exchange;
<PAGE> 32
25
(r) the form or forms of the Trust Agreement, Amended and Restated Trust
Agreement and Guarantee Agreement, if different from the forms attached hereto
as Annexes A, B and C, respectively;
(s) the relative degree, if any, to which the Securities of the series
shall be senior to or be subordinated to other series of Securities in right of
payment, whether such other series of Securities are Outstanding or not; and
(t) any other terms of the Securities of such series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided herein or in or
pursuant to such Board Resolution and set forth in such Officers' Certificate or
in any such indenture supplemental hereto.
If any of the terms of the Securities of any 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
Debt as provided in Article XIII.
SECTION 3.2. Denominations.
The Securities of each series shall be in registered form without coupons
and shall be issuable in denominations of $25 and any integral multiple thereof,
unless otherwise specified as contemplated by Section 3.1.
SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its President
or one of its Vice Presidents under its corporate seal reproduced or impressed
thereon and 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 make such Securities available for delivery. If the
form
<PAGE> 33
26
or terms of the Securities of the series have been established by or pursuant to
one or more Board Resolutions as permitted by Sections 2.1 and 3.1, 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 6.1) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that such form
has been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that such terms
have been established in conformity with the provisions of this Indenture;
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and
(4) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities have been complied with.
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 3.1 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 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the 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 the manual signature of one of its authorized
signatories, 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
<PAGE> 34
27
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for can cellation as provided in Section
3.9, for all purposes of this Indenture such Security shall be deemed never to
have been authenticated and delivered hereunder and shall not be entitled to the
benefits of this Indenture.
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities of such
series 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 such series to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary Securities shall
be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for that purpose
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations having
the same Original Issue Date and Stated Maturity and having the same terms as
such temporary Securities. 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.
SECTION 3.5. Registration, Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a 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. Such register is herein sometimes referred to as the
"Securities Register." The Trustee is hereby appointed "Securities Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company designated for that purpose the Company shall execute,
and the Trustee shall authenticate and make available for delivery, in the name
of the designated transferee or transferees, one or more new Securities of the
same series of any authorized denominations, of a like aggregate principal
amount, of the same Original Issue Date and Stated Maturity and having the same
terms.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original
<PAGE> 35
28
Issue Date and Stated Maturity and having the same terms, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any 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
transfer or exchange.
Every Security presented or surrendered for transfer or exchange shall (if
so required by the Company or the Securities Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made to a Holder for any 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
transfer or exchange of Securities.
The provisions of Clauses (1), (2), (3) and (4) below shall apply
only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be
registered, in the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (A) such Depositary (i) has
notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or (ii) has ceased to be a clearing
agency registered under the Exchange Act at a time when the Depositary is
required to be so registered to act as depositary, in either case unless
the Company has approved a successor Depositary within 90 days, (B) there
shall have occurred and be continuing an Event of Default with respect to
such Global Security, (C) the Company in its sole discretion determines
that such Global Security will be so exchangeable or transferable or (D)
there shall exist such circumstances, if any, in addition to or in lieu of
the foregoing as have been specified for this purpose as contemplated by
Section 3.1.
(3) Subject to Clause (2) above, any exchange of a Global Security
for other Securities may be made in whole or in part, and all Securities
issued in exchange for a Global Security or any portion thereof shall be
registered in such names as the Depositary for such Global Security shall
direct.
<PAGE> 36
29
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 3.4, 3.6, 9.6
or 11.6 or otherwise, shall be authenticated and delivered in the form of,
and shall be, a Global Security, unless such Security is registered in the
name of a Person other than the Depositary for such Global Security or a
nominee thereof.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section, (a) to issue, transfer or exchange any Security of
any series during a period beginning at the opening of business 15 days before
the day of selection for redemption of Securities pursuant to Article XI and
ending at the close of business on the day of mailing of notice of redemption or
(b) to transfer or exchange any Security so selected for redemption in whole or
in part, except, in the case of any Security to be redeemed in part, any portion
thereof not to be redeemed.
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with such
security or indemnity as may be required by the Company or the Trustee to save
each of them harmless, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a new Security
of the same issue and series of like tenor and principal amount, having the same
Original Issue Date and Stated Maturity and bearing the same interest rate as
such mutilated Security, and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and to 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
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and make available for
delivery, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same issue and series of like tenor and principal amount, having the same
Original Issue Date and Stated Maturity and bearing the same interest rate as
such destroyed, lost or stolen Security, 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.
<PAGE> 37
30
Every new Security 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 3.7. Payment of Interest; Interest Rights Preserved.
Interest on any Security of any series 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
in respect of Securities of such series, except that, unless otherwise provided
in the Securities of such series, interest payable on the Stated Maturity of the
principal of a Security shall be paid to the Person to whom principal is paid.
The initial payment of interest on any Security of any series which is issued
between a Regular Record Date and the related Interest Payment Date shall be
payable as provided in such Security or in the Board Resolution pursuant to
Section 3.1 with respect to the related series of Securities. At the option of
the Company, interest on any series of Securities may be paid (i) by check
mailed to the address of the Person entitled thereto as it shall appear on the
Securities Register of such series or (ii) by wire transfer in immediately
available funds at such place and to such account as designated by the Person
entitled thereto as specified in the Securities Register of such series.
Any interest on any Security which is payable, but is not timely paid or
duly provided for, on any Interest Payment Date for Securities of such series
(herein called "Defaulted Interest"), shall forthwith cease to be payable to the
registered 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 in respect of which
interest is in default (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 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
<PAGE> 38
31
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 a Security of such series at the address of such Holder as it appears in the
Securities Register not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the Company,
cause a similar notice to be published at least once in a newspaper, customarily
published in the English language on each Business Day and of general
circulation in the Borough of Manhattan The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered 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 in any other
lawful manner not inconsistent with the requirements of any securities exchange
or automated quotation system on which the Securities of the series in respect
of which interest is in default may be listed or traded and, upon such notice as
may be required by such exchange (or by the Trustee if the Securities are not
listed), if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such payment shall be deemed practicable by the
Trustee.
Any interest on any Security which is deferred or extended pursuant to
Section 3.11 shall not be Defaulted Interest for the purposes of this Section
3.7.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon 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 3.8. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Section 3.7) 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.
SECTION 3.9. Cancellation.
All Securities surrendered for payment, redemption, transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee, and any such Securities and Securities surrendered directly to the
Trustee for any such purpose shall be
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32
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 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. Upon written
request, all canceled Securities shall be returned by the Trustee to the Company
and destroyed by the Company.
SECTION 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series for any
period shall be computed on the basis of a 360-day year of twelve 30-day months
and interest on the Securities of each series for any partial period shall be
computed on the basis of the number of days elapsed in a 360-day year of twelve
30-day months.
SECTION 3.11. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, so long as no Event of Default has
occurred and is continuing, the Company shall have the right, at any time during
the term of such series, from time to time to defer the payment of interest on
such Securities for such period or periods as may be specified as contemplated
by Section 3.1 (each, an "Extension Period") during which Extension Periods the
Company shall have the right to make partial payments of interest on any
Interest Payment Date. No Extension Period shall end on a date other than an
Interest Payment Date. At the end of any such Extension Period the Company shall
pay all interest then accrued and unpaid on the Securities (together with
Additional Interest thereon, if any, at the rate specified for the Securities of
such series to the extent permitted by applicable law) to the Persons in whose
names that Securities are registered at the close of business on the Regular
Record Date with respect to the Interest Payment Date at the end of such
Extension Period; provided, however, that no Extension Period shall exceed the
period or periods specified in such securities or extend beyond the Stated
Maturity of the principal of the Securities of such series; provided, further,
that during any such Extension Period, the Company shall not, and shall not
permit any Subsidiary to, (i) declare or pay any dividends or distributions on,
or redeem, purchase, acquire or make a liquidation payment with respect to, any
of the Company's capital stock, (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt security
of the Company that ranks pari passu with or junior in interest to the
Securities of such series or (iii) make any guarantee payments with respect to
any guarantee by the Company of the debt securities of any Subsidiary of the
Company that by their terms rank pari passu with or junior in interest to the
securities of such series (other than (a) dividends or distributions in the
Company's capital stock, (b) any declaration of a dividend in connection with
the implementation of a Rights Plan, or the redemption or repurchase of any
rights distributed pursuant to a Rights Plan, (c) payments under the Guarantee
with respect to such Security, and (d) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Company's benefit plans for
its directors,
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33
officers or employees, related to the issuance of Common Stock or rights under a
dividend reinvestment and stock purchase plan, or related to the issuance of
Common Stock (or securities convertible or exchangeable for Common Stock) as
consideration in an acquisition transaction that was entered into prior to the
commencement of such Extension Period). Prior to the termination of any such
Extension Period, the Company may further defer the payment of interest,
provided that no Extension Period shall exceed the period or periods specified
in such Securities or extend beyond the Stated Maturity of the principal of such
Securities. Upon termination of any Extension Period and upon the payment of all
accrued and unpaid interest and any Additional Interest then due on any Interest
Payment Date, the Company may elect to begin a new Extension Period, subject to
the above requirements. No interest shall be due and payable during an Extension
Period, except at the end thereof. The Company shall give the Holders of the
Securities of such series and the Trustee written notice of its election to
begin any such Extension Period at least one Business Day prior to the next
succeeding Interest Payment Date on which interest on Securities of such series
would be payable but for such deferral or, with respect to the Securities of a
series issued to a Trust, so long as such Securities are held by such Trust,
prior to the earlier of (i) the next succeeding date on which Distributions on
the Capital Securities of such Trust would be payable but for such deferral or
(ii) the date the Administrative Trustees of such Trust are required to give
notice to any securities exchange or other applicable self-regulatory
organization or to holders of such Capital Securities of the record date or the
date such Distributions are payable, but in any event not less than one Business
Day prior to such record date.
The Trustee shall promptly give notice, in the name and at the expense of
the Company, of the Company's election to begin any such Extension Period to the
Holders of the Outstanding Securities of such series.
SECTION 3.12. Right of Set-Off.
With respect to the Securities of a series issued to a Trust,
notwithstanding anything to the contrary in this Indenture, the Company shall
have the right to set-off any payment it is otherwise required to make
thereunder in respect of any such Security to the extent the Company has
theretofore made, or is concurrently on the date of such payment making, a
payment under the Guarantee relating to such Security or under Section 5.8 of
this Indenture.
SECTION 3.13. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company and, by its
acceptance of a Security or a beneficial interest therein, the Holder of, and
any Person that acquires a beneficial interest in, such Security intend that
such Security constitutes indebtedness and agree to treat such Security as
indebtedness for United States federal, local and state tax purposes.
<PAGE> 41
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SECTION 3.14. Shortening or Extension of Stated Maturity.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, the Company shall have the right to (i)
shorten the Stated Maturity of the principal of the Securities of such series at
any time to any date not earlier than the first date on which the Company has
the right to redeem the Securities of such series, and (ii) extend the Stated
Maturity of the principal of the Securities of such series at any time at its
election for one or more periods, but in no event to a date later than the 49th
anniversary of the Original Issue Date of the Securities of such series;
provided that, if the Company elects to exercise its right to extend the Stated
Maturity of the principal of the Securities of such series pursuant to clause
(ii), above, at the time such election is made and at the time of extension (A)
the Company is not in bankruptcy, otherwise insolvent or in liquidation, (B) the
Company is not in default in the payment of any interest or principal on such
Securities, (C) in the case of any series of Securities held by a Trust, such
Trust is not in arrears on payments of Distributions on the Capital Securities
issued by such Trust and no deferred Distributions are accumulated and (D) such
Securities are rated not less than BBB- by S&P or Baa3 by Moody's or the
equivalent by any other nationally recognized statistical rating organization.
In the event the Company elects to shorten or extend the Stated Maturity of the
Series A Subordinated Debentures, it shall give written notice to the Trustee,
and the Trustee shall give notice of such shortening or extension to the
Holders, no less than 30 and no more than 60 days prior to the effectiveness
thereof. The Company's right to shorten the Stated Maturity of the principal of
the Securities of such series pursuant to clause (i) above is subject to the
Company having received prior approval of the Federal Reserve if required under
applicable capital guidelines or policies.
SECTION 3.15. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
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SECTION 3.16. Over-Allotment Option.
(a) Pursuant to Section 7.13(a) of the Trust Agreement, if the Option (as
defined in the Trust Agreement) is exercised, then the Company shall issue and
sell such additional Securities (the "Option Securities") to the Trust; provided
that:
(1) the aggregate principal amount of Option Securities shall not exceed
the aggregate liquidation amount of Trust Securities issued and sold
on the applicable Closing Date (as defined in the Trust Agreement);
and
(2) the Option Securities shall be of the same series and shall bear the
same CUSIP number, pursuant to Section 3.15 hereof, as the
Securities initially issued and sold hereunder corresponding to such
Trust Securities issued initially.
(b) If Option Securities are issued hereunder on a date other than the
initial Closing Date, then the Company shall execute and deliver, pursuant to
Section 3.3 hereof, and the Trustee shall authenticate, pursuant to section 3.3
hereof, a second Security, or such additional Securities, as appropriate, the
form of which Security is provided by Article II hereof and which is
substantially identical in all relevant respects to the form of Security
executed and delivered on such initial Closing Date.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for and as otherwise provided in this
Section 4.1) and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.6 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 10.3) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
<PAGE> 43
36
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year of the date of deposit, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and
at the expense, of the Company,
and the Company, in the case of Clause (B) (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in the currency or currencies in which
the Securities of such series are payable sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if any) and
interest (including any Additional 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 6.7, the obligations of
the Company to any Authenticating Agent under Section 6.14 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 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for the payment of which such money or obligations have been
deposited with or received by the Trustee.
ARTICLE V
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REMEDIES
SECTION 5.1. Events of Default.
"Event of Default", wherever used herein with respect to the 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, including any Additional Interest in respect thereof, when it becomes
due and payable, and continuance of such default for a period of 30 days
(subject to the deferral of any Interest Payment Date in the case of an
Extension Period); or
(2) default in the payment of the principal of (or premium, if any, on)
any Security of that series at its Maturity; or
(3) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Company in this Indenture with respect to that
series (other than a covenant or warranty a default in the performance of which
or the breach of which is elsewhere in this Section specifically dealt with),
and continuance of such default or breach for a period of 90 days after there
has been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice specifying
such default or breach and requiring it to be remedied; or
(4) the entry of a decree or order by a court having jurisdiction in the
premises 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
bankruptcy, insolvency, reorganization or other similar law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(5) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit for creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due and
its willingness
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to be adjudicated a bankrupt, or the taking of corporate action by the Company
in furtherance of any such action; or
(6) any other Event of Default provided with respect to Securities of that
series.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 5.1(4) or 5.1(5)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all 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), provided that, in the case of
the Securities of a series issued to a Trust, if, upon an Event of Default, the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series fail to declare the principal amount (or,
if the Securities of that series are Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
Securities of that series to be immediately due and payable, the holders of at
least 25% in aggregate liquidation amount of the corresponding series of Capital
Securities then outstanding shall have such right by a notice in writing to the
Company and the Trustee; and upon any such declaration such principal amount (or
specified portion thereof) of and the accrued interest (including any Additional
Interest) on all the Securities of such series shall become immediately due and
payable. Payment of principal and interest (including any Additional Interest)
on such Securities shall remain subordinated to the extent provided in Article
XIII notwithstanding that such amount shall become immediately due and payable
as herein provided. If an Event of Default specified in Section 5.1(4) or 5.1(5)
with respect to Securities of any series at the time Outstanding occurs, the
principal amount of all the Securities of that series (or, if the Securities of
that series are Discount Securities, such portion of the principal amount of
such Securities as may be specified by the terms of that series) shall
automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
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 installments of interest (including any Additional
Interest) on all Securities of that series,
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(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Securities, and
(C) 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 has
become due solely by such acceleration, have been cured or waived as provided in
Section 5.13;
provided that, in the case of Securities of a series held by a Trust, if the
Holders of at least a majority in principal amount of the Outstanding Securities
of that series fails to rescind and annul such declaration and its consequences,
the holders of a majority in aggregate Liquidation Amount (as defined in the
Trust Agreement under which such Trust is formed) of the related series of
Capital Securities then outstanding shall have such right by written notice to
the Company and the Trustee, subject to the satisfaction of the conditions set
forth in Clauses (1) and (2) above of this Section 5.2.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest
(including any Additional 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 (and premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal, including any sinking fund payment or
analogous obligations (and premium, if any) and interest (including any
Additional Interest); and, in addition thereto, all amounts owing the Trustee
under Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and
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collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the 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 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors,
(a) the Trustee (irrespective of whether the principal of the Securities
of any series shall then be due and payable as therein expressed or by
declaration of acceleration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue principal
(and premium, if any) or interest (including any Additional Interest)) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (or,
if the Securities of that series are Discount Securities, such portion of
the principal amount as may be due and payable pursuant to a declaration
in accordance with Section 5.2) (and premium, if any) and interest
(including any Additional Interest) owing and unpaid in respect to the
Securities and to file such other papers or documents as may be necessary
or advisable and to take any and all actions as are authorized under the
Trust Indenture Act in order to have the claims of the Holders and any
predecessor to the Trustee under Section 6.7 allowed in any such judicial
proceedings; and
(ii) 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 in accordance with Section 5.6; and
(b) 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 for distribution in
accordance with Section 5.6, 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 to it and any predecessor Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment
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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; provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar official
and be a member of a creditors' or other similar committee.
SECTION 5.5. 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 all the amounts owing the Trustee and any predecessor Trustee
under Section 6.7, 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 5.6. Application of Money Collected.
Any money or property collected or to be applied by the Trustee with
respect to a series of Securities 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 or property on account of principal (or premium,
if any) or interest (including any Additional 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 and any predecessor
Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts then due
and unpaid upon such series of Securities for principal (and premium, if any),
interest (including any Additional Interest), 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 series of
Securities for principal (and premium, if any) and interest (including any
Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 5.7. Limitation on Suits.
No Holder of any Securities 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, assignee, trustee, liquidator,
sequestrator (or other similar official) or for any other remedy hereunder,
unless:
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(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 security
or 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 security or 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 itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities, 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 such Holders.
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest; Direct Action by Holders of Capital Securities.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right which is absolute and unconditional to receive
payment of the principal of (and premium, if any) and (subject to Section 3.7)
interest (including any Additional Interest) on such Security on the respective
Stated 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 right shall not be impaired without the consent of such
Holder. In the case of Securities of a series held by a Trust, any holder of the
corresponding series of Capital Securities held by such Trust shall have the
right, upon the occurrence of an Event of Default described in Section 5.1(1) or
5.1(2), to institute a suit directly against the Company for enforcement of
payment to such holder of principal of (premium, if any) and (subject to Section
3.7) interest (including any Additional Interest) on the Securities having a
principal amount equal to the aggregate Liquidation Amount (as defined in the
Trust Agreement under which such Trust is formed) of such Capital Securities of
the corresponding series held by such holder.
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SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Capital Securities 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, such Holder or such holder of Capital
Securities, then and in every such case the Company, the Trustee, the Holders
and such holder of Capital Securities shall, subject to any determination in
such proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Trustee, the
Holders and the holders of Capital Securities shall continue as though no such
proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any Security or any
holder of any Capital Security 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 and the right and remedy given to the holders of Capital
Securities by Section 5.8 may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee, the Holders or the holders of Capital
Securities, as the case may be.
SECTION 5.12. 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,
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(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee shall have the
right to decline to follow such direction if a Responsible Officer or Officers
of the Trustee shall, in good faith, determine that the proceeding so directed
would be unjustly prejudicial to the Holders not joining in any such direction
or would involve the Trustee in personal liability.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series and, in the case of any Securities of a
series issued to a Trust, the holders of a majority in Liquidation Amount (as
defined in the relevant Trust Agreement) of Capital Securities issued by such
Trust may waive any past default hereunder and its consequences with respect to
such series except a default:
(1) in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security of such series (unless 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 has become due
solely by such acceleration, have been cured or annulled as provided in Section
5.3 and the Company has paid or deposited with the Trustee a sum sufficient to
pay all overdue installments of interest (including any Additional Interest) on
all Securities of that series, the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate borne by the
Securities, and all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel), or
(2) in respect of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Any such waiver shall be deemed to be on behalf of the Holders of all the
Securities of such series or, in the case of a waiver by holders of Capital
Securities issued by such Trust, by all holders of Capital Securities issued by
such Trust.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit
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for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest (including any Additional Interest) on any Security on or
after the respective Stated Maturities expressed in such Security.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provisions
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.
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(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; 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 Holders pursuant to Section 5.12 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.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders of
Securities of such series, as their names and addresses appear in the Securities
Register, notice of such default, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest (including any Additional
Interest) on any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of Securities of such series; and provided, further,
that, in the case of any default of
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the character specified in Section 5.1(3), no such notice to Holders of
Securities of such series shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
SECTION 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(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, Security or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders 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, indenture,
Security or other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(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; and
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(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of the Securities or the proceeds thereof.
SECTION 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities
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
6.8 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Securities
Registrar or such other agent.
SECTION 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
SECTION 6.7. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as shall be
agreed in writing between the Company and the Trustee for all services rendered
by it hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(2) 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 the Trustee's negligence or
bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for, and
to hold it harmless against, any and all loss, liability, damage, claim or
expense (including the reasonable
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49
compensation and the expenses and disbursements of its agents and counsel)
incurred without negligence or bad faith, arising out of or in connection with
the acceptance or administration of this trust or the performance of its duties
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. This indemnification shall survive the termination
of this Agreement.
To secure the Company's payment obligations in this Section, the Company
and the Holders agree that the Trustee shall have a lien prior to the Securities
on all money or property held or collected by the Trustee. Such lien shall
survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
SECTION 6.8. Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act. Nothing
herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of said Section 310(b).
SECTION 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of the
United States of America or of any state or territory or the District of
Columbia, authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by federal, state, territorial or District
of Columbia authority, or
(b) a corporation or other Person organized and doing business under the
laws of a foreign government that is permitted to act as Trustee pursuant to a
rule, regulation or order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then,
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most
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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. Neither the Company nor any Person directly or indirectly
controlling, controlled by or under common control with the Company shall serve
as Trustee for the Securities of any series issued hereunder.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the 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. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after such removal, the Trustee
being removed may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 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 6.9 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, acting pursuant to the authority of a
Board Resolution, may remove the Trustee with respect to all Securities, or (ii)
subject to Section 5.14, 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.
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(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 with respect to the Securities of
that or those series. 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, become the
successor Trustee with respect to the Securities of such series and 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 hereinafter
provided, any Holder who has been a bona fide Holder of a Security for at least
six months may, subject to Section 5.14, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities of such series as their names and addresses appear in the
Securities Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all
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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 rights, powers and trusts referred to in paragraph
(a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the 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, and in case any
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee or in
the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
SECTION 6.13. Preferential Collection of Claims Against Company.
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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 6.14. 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 3.6, 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. 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, or of any state or territory or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital 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 all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, 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 give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment
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54
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 provision 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
certificate of authentication in the following form:
This is one of the Securities referred to in the within mentioned
Indenture.
Dated:
THE FIRST NATIONAL BANK OF CHICAGO
As Trustee
By: _______________________________
As Authenticating Agent
By: _______________________________
Authorized Officer
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ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after January 15 and July 15 in
each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such January 1 and July 1, 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 Securities Registrar.
SECTION 7.2. Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 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 in 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 the
disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
SECTION 7.3. Reports by Trustee.
(a) 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 at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
sixty days after each May 15 following the date of this Indenture
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deliver to Holders a brief report, dated as of such May 15, which complies with
the provisions of such Section 313(a).
(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 and also with the Commission. The Company will promptly
notify the Trustee when any Securities are listed on any stock exchange.
SECTION 7.4. Reports by Company .
The Company shall file with the Trustee and with 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 in the Trust Indenture Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed with
the Trustee within 15 days after the same is required to be filed with the
Commission. Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall continue to file with the Commission and provide the
Trustee with the annual reports and the information, documents and other reports
which are specified in Sections 13 and 15(d) of the Exchange Act. The Company
also shall comply with the other provisions of Trust Indenture Act Section
314(a). Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and no Person shall 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 organized and existing
under the laws of the United States of America or any State or the District of
Columbia and shall
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expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest (including any Additional
Interest) on all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing;
(3) in the case of the Securities of a series held by a Trust, such
consolidation, merger, conveyance, transfer or lease is permitted under the
related Trust Agreement and Guarantee and does not give rise to any breach or
violation of the related Trust Agreement or Guarantee; 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 any such supplemental indenture complies with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with; and the Trustee, subject to Section 6.1,
may rely upon such Officers' Certificate and Opinion of Counsel as conclusive
evidence that such transaction complies with this Section 8.1.
SECTION 8.2. Successor Corporation Substituted.
Upon any consolidation or merger by the Company with or into any other
Person, or any conveyance, transfer or lease by the Company of its properties
and assets substantially as an entirety to any Person in accordance with Section
8.1, 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 in the event of any such conveyance,
transfer or lease the Company shall be discharged from all obligations and
covenants under the Indenture and the Securities and may be dissolved and
liquidated.
Such successor Person may cause to be signed, and may issue either in its
own name or in the name of the Company, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the written order of such successor Person
instead of the Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall make
available for delivery any Securities which previously shall have been signed
and delivered by the officers of the Company to the Trustee for authentication
pursuant to such provisions and any Securities which such successor Person
thereafter shall cause to be signed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or
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thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form may be made in the Securities thereafter to be
issued as may be appropriate.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form reasonably 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 contained; or
(2) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee or to surrender any right or power herein conferred upon the
Company; or
(3) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 or 3.1; or
(4) 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
(5) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such additional Events of Default are
to be for the benefit of less than all series of Securities, stating that such
additional Events of Default are expressly being included solely for the benefit
of such series); or
(6) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
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59
(7) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this clause (7) shall not
adversely affect the interest of the Holders of Securities of any series in any
material respect or, in the case of the Securities of a series issued to a Trust
and for so long as any of the corresponding series of Capital Securities issued
by such Trust shall remain outstanding, the holders of such Capital Securities;
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 6.11(b); or
(9) to comply with the requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the Trust Indenture Act.
SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding 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) except to the extent permitted by Section 3.11 or as otherwise
specified as contemplated by Section 2.1 or Section 3.1 with respect to the
deferral of the payment of interest on the Securities of any series, change the
Stated Maturity of the principal of, or any installment of interest (including
any Additional Interest) on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or reduce any premium payable upon the
redemption thereof, or reduce the amount of principal of a Discount Security
that would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or change the place of payment where, or the
coin or currency in which, any Security 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
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(3) modify any of the provisions of this Section, Section 5.13 or Section
10.5, 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 Security affected thereby; or
(4) modify the provisions in Article XIII of this Indenture with respect
to the subordination of Outstanding Securities of any series in a manner adverse
to the Holders thereof;
provided, further, that, in the case of the Securities of a series issued to a
Trust, so long as any of the corresponding series of Capital Securities issued
by such Trust remains outstanding, (i) no such amendment shall be made that
adversely affects the holders of such Capital Securities in any material
respect, and no termination of this Indenture shall occur, and no waiver of any
Event of Default or compliance with any covenant under this Indenture shall be
effective, without the prior consent of the holders of at least a majority of
the aggregate Liquidation Amount (as defined in the Trust Agreement under which
such Trust is organized) of such Capital Securities then outstanding unless and
until the principal (and premium, if any) of the Securities of such series and
all accrued and, subject to Section 3.7, unpaid interest (including any
Additional Interest) thereon have been paid in full and (ii) no amendment shall
be made to Section 5.8 of this Indenture that would impair the rights of the
holders of Capital Securities provided therein without the prior consent of the
holders of each Capital Security then outstanding unless and until the principal
(and premium, if any) of the Securities of such series and all accrued and
(subject to Section 3.7) unpaid interest (including any Additional Interest)
thereon have been paid in full.
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities or Capital Securities, or
which modifies the rights of the Holders of Securities or holders of Capital
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 or holders of Capital Securities of any other series.
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 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be provided, and
(subject to Section 6.1) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture, and that
all conditions precedent have been complied with. 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.
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SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6. Reference in 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 Company, bear a notation in form approved by the Company 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
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 X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest (including Additional Interest) on the Securities of that
series in accordance with the terms of such Securities and this Indenture.
SECTION 10.2. 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 and an office or agency where Securities of that
series may be surrendered for transfer or exchange and where notices and demands
to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company initially appoints the Trustee, acting
through its Corporate Trust Office, as its agent for said purposes. The Company
will give prompt written notice to the Trustee of any change in the location of
any such office or agency. If at any time the
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Company shall fail to maintain such office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
of 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 and any change in
the location of any such office or agency.
SECTION 10.3. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior
to 10:00 a.m. New York City time on each due date of the principal of or
interest on any Securities, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal and
premium (if any) or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest (including Additional Interest) on Securities in
trust for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any payment of principal (and
premium, if any) or interest (including Additional Interest);
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent; and
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(4) comply with the provisions of the Trust Indenture Act applicable to it
as a Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by the Company or any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest (including Additional Interest) on any Security and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be paid
on Company Request to the Company, or (if then held by the Company) shall
(unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) 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 10.4. Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the end of
each calendar year of the Company ending after the date hereof, an Officers'
Certificate, one of the signatories of which shall be the principal executive,
principal financial or principal accounting officer of the Company, covering the
preceding calendar year, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance, observance or
fulfillment of or compliance with any of the terms, provisions, covenants and
conditions of this Indenture, and if the Company shall be in default, specifying
all such defaults and the nature and status thereof of which they may have
knowledge. For the purpose of this Section 10.4, compliance shall be determined
without regard to any grace period or requirement of notice provided pursuant to
the terms of this Indenture.
SECTION 10.5. Waiver of Certain Covenants.
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The Company may omit in any particular instance to comply with any
covenant or condition provided pursuant to Section 3.1, 9.1(3) or 9.1(4) with
respect to the Securities of any series, if before or after the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company in respect of any
such covenant or condition shall remain in full force and effect.
SECTION 10.6. Payment of Trust Costs and Expenses.
Since each Trust is being formed solely to facilitate an investment in the
Securities, the Company, in its capacity as the issuer of the Securities, hereby
covenants to pay all debts and obligations (other than with respect to the
Capital Securities and Common Securities) and all costs and expenses of each
Trust (including, but not limited to, all costs and expenses relating to the
organization of the Trust, the fees and expenses of the Trustees and all costs
and expenses relating to the operation of the Trust) and to pay any and all
taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed on the Trust by the United States, or any other
taxing authority, so that the net amounts received and retained by the Trust and
the Property Trustee after paying such expenses will be equal to the amounts the
Trust and the Property Trustee would have received had no such costs or expenses
been incurred by or imposed on the Trust. The obligations of the Company to pay
all debts, obligations, costs and expenses of each Trust (other than with
respect to the Capital Securities and Common Securities) shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture.
SECTION 10.7. Additional Covenants.
The Company covenants and agrees with each Holder of Securities of each
series that it shall not, and it shall not permit any Subsidiary of the Company
to, (i) declare or pay any dividends or distributions on, or redeem purchase,
acquire or make a liquidation payment with respect to, any shares of the
Company's capital stock, or (ii) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company that rank pari passu with or junior in interest to the Securities of
such series or (iii) make any guarantee payments with respect to any guarantee
by the Company of debt securities of any subsidiary of the Company if such
guarantee ranks pari passu with or junior in interest to the Securities (other
than (a) dividends or distributions in the Company's capital stock, (b) any
declaration of a dividend in connection with the implementation of a Rights Plan
or the redemption or repurchase of any rights distributed pursuant to a Rights
Plan, (c) payments under the Guarantee with respect to the Securities of such
Series, and (d) purchases of Common Stock related to the issuance of Common
Stock or rights under any of the Company's benefit plans for its directors,
officers or employees, related to the issuance of Common Stock or rights under a
dividend reinvestment and stock purchase plan, or related to the issuance of
Common Stock (or securities convertible or exchangeable for Common Stock) as
consideration in an acquisition
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transaction that was entered into prior to the commencement of such Extension
Period) if at such time (x) there shall have occurred any event of which the
Company has actual knowledge that (A) with the giving of notice or the lapse of
time or both, would constitute an Event of Default with respect to the
Securities of such series and (B) in respect of which the Company shall not have
taken reasonable steps to cure, (y) if the Securities of such series are held by
a Trust, the Company shall be in default with respect to its payment of any
obligations under the Guarantee relating to the Capital Securities issued by
such Trust or (z) the Company shall have given notice of its election to begin
an Extension Period with respect to the Securities of such series as provided
herein and shall not have rescinded such notice, or such Extension Period, or
any extension thereof, shall be continuing.
The Company also covenants with each Holder of Securities of a series
issued to a Trust (i) to maintain directly or indirectly 100% ownership of the
Common Securities of such Trust; provided, however, that any permitted successor
of the Company hereunder may succeed to the Company's ownership of such Common
Securities, (ii) not to voluntarily terminate, wind-up or liquidate such Trust,
except (a) in connection with a distribution of the Securities of such series to
the holders of the Trust Securities of such Trust in liquidation of such Trust
or (b) in connection with certain mergers, consolidations or amalgamations
permitted by the related Trust Agreement and (iii) to use its reasonable
efforts, consistent with the terms and provisions of such Trust Agreement, to
cause such Trust to remain classified as a grantor trust and not an association
taxable as a corporation for United States federal income tax purposes.
SECTION 10.8. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on Outstanding Securities as
of the end of such year, if any.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Applicability of This Article.
Redemption of Securities of any series (whether by operation of a sinking
fund or otherwise) as permitted or required by any form of Security issued
pursuant to this Indenture shall be made in accordance with such form of
Security and this Article; provided, however, that if any provision of any such
form of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern. Except as otherwise set forth
in the form of Security for such series, each Security of such series shall be
subject to partial redemption only in the amount of $25 or, in the case of the
Securities of a series issued to a Trust, $25, or integral multiples thereof.
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SECTION 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company of the Securities, the Company shall, not less than 45 nor more than
60 days prior to the Redemption Date (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such date and of the
principal amount of Securities of that series to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate and an Opinion of Counsel evidencing
compliance with such restriction.
SECTION 11.3. Selection of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all 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 lot or such other method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities of
such series and of a specified tenor are to be redeemed (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 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 partial redemption and 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 Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed. If the
Company shall so direct, Securities registered in the name of the Company, any
Affiliate or any Subsidiary thereof shall not be included in the Securities
selected for redemption.
SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not later than the thirtieth day, and not earlier than the sixtieth day,
prior to the Redemption Date, to each Holder of Securities to be redeemed, at
the address of such Holder as it appears in the Securities Register.
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With respect to Securities of each series to be redeemed, each notice of
redemption shall identify the Securities to be redeemed (including CUSIP number,
if a CUSIP number has been assigned to such Securities of such Series) and shall
state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities of such particular series and
having the same terms are to be redeemed, the identification (and, in the case
of partial redemption, the respective principal amounts) of the particular
Securities to be redeemed;
(d) that on the Redemption Date, the Redemption Price will become due and
payable upon each such Security or portion thereof, and that interest thereon,
if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be surrendered for
payment of the Redemption Price; and
(f) 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 and shall not be
irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
SECTION 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on the Redemption Date specified in
the notice of redemption given as provided in Section 11.4, the Company will
deposit with the Trustee or with one or more Paying Agents (or if the Company is
acting as its own Paying Agent, the Company will segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption
Price of, and any accrued interest (including Additional Interest) on, all the
Securities which are to be redeemed on that date.
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SECTION 11.6. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section 11.4,
the Securities or portion of Securities with respect to which such notice has
been given shall become due and payable on the date and at the place or places
stated in such notice at the applicable Redemption Price. On presentation and
surrender of such Securities at a Place of Payment in said notice specified, the
said securities or the specified portions thereof shall be paid and redeemed by
the Company at the applicable Redemption Price, together with accrued interest
(including any Additional Interest) to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 3.1, installments of
interest whose Stated Maturity is on or prior to the Redemption Date will 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 3.7.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to
the Holder thereof, at the expense of the Company, a new Security or Securities
of the same series, of authorized denominations, in aggregate principal amount
equal to the unredeemed portion of the Security so presented and having the same
Original Issue Date, Stated Maturity and terms. If a Global Security is so
surrendered, such new Security will also be a new Global Security.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal of and premium, if any, on such Security
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.7. Right of Redemption of Securities Initially Issued to a
Trust.
In the case of the Securities of a series initially issued to a Trust,
except as otherwise established pursuant to Section 3.1 for the Securities of a
Series, the Company, at its option, may redeem such Securities (i) on or after
the date five years after the Original Issue Date of such Securities, in whole
at any time or in part from time to time, or (ii) upon the occurrence and during
the continuation of a Tax Event, an Investment Company Event or a Regulatory
Capital Event, at any time within 90 days following the occurrence of such Tax
Event, an Investment Company Event or Regulatory Capital Event in respect of
such Trust, in whole (but not in part), in each case at a Redemption Price equal
to 100% of the principal amount thereof; provided that the Company's right to
redeem such Securities pursuant to clause (i) or (ii) above is subject to the
Company having received the prior approval of the Federal Reserve if required
under applicable capital guidelines or policies of the Federal Reserve.
ARTICLE XII
SINKING FUNDS
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SECTION 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 3.1 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms
of any Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any sinking fund payment in excess of such minimum amount
which is permitted to be made by the terms of such Securities of any series is
herein referred to as an "optional sinking fund payment". If provided for by the
terms of any Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.2. Each sinking
fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of such Securities.
SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities.
In lieu of making all or any part of a mandatory sinking fund payment with
respect to any Securities of a series in cash, the Company may at its option, at
any time no more than 16 months and no less than 30 days prior to the date on
which such sinking fund payment is due, deliver to the Trustee Securities of
such series (together with the unmatured coupons, if any, appertaining thereto)
theretofore purchased or otherwise acquired by the Company, except Securities of
such series that have been redeemed through the application of mandatory or
optional sinking fund payments pursuant to the terms of the Securities of such
series, accompanied by a Company Order instructing the Trustee to credit such
obligations and stating that the Securities of such series were originally
issued by the Company by way of bona fide sale or other negotiation for value;
provided that the Securities to be so credited have not been previously so
credited. The Securities to be so credited shall be received and credited for
such purpose by the Trustee at the redemption price for such Securities, as
specified in the Securities so to be redeemed, for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.3. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
such Securities pursuant to the terms of such Securities, the portion thereof,
if any, which is to be satisfied by payment of cash in the currency in which the
Securities of such series are payable (except as provided pursuant to Section
3.1) and the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities pursuant to Section 12.2 and will also deliver to the
Trustee any Securities to be so delivered. Such Officers' Certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the
succeeding sinking fund payment date. In the case of the failure of the Company
to deliver such Officers' Certificate (or,
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as required by this Indenture, the Securities and coupons, if any, specified in
such Officers' Certificate), the sinking fund payment due on the succeeding
sinking fund payment date for such series shall be paid entirely in cash and
shall be sufficient to redeem the principal amount of the Securities of such
series subject to a mandatory sinking fund payment without the right to deliver
or credit securities as provided in Section 12.2 and without the right to make
the optional sinking fund payment with respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made with respect
to the Securities of any particular series shall be applied by the Trustee (or
by the Company if the Company is acting as its own Paying Agent) on the sinking
fund payment date on which such payment is made (or, if such payment is made
before a sinking fund payment date, on the sinking fund payment date immediately
following the date of such payment) to the redemption of Securities of such
series at the Redemption Price specified in such Securities with respect to the
sinking fund. Any sinking fund moneys not so applied or allocated by the Trustee
(or, if the Company is acting as its own Paying Agent, segregated and held in
trust by the Company as provided in Section 10.3) for such series and together
with such payment (or such amount so segregated) shall be applied in accordance
with the provisions of this Section 12.3. Any and all sinking fund moneys with
respect to the Securities of any particular series held by the Trustee (or if
the Company is acting as its own Paying Agent, segregated and held in trust as
provided in Section 10.3) on the last sinking fund payment date with respect to
Securities of such series and not held for the payment or redemption of
particular Securities of such series shall be applied by the Trustee (or by the
Company if the Company is acting as its own Paying Agent), together with other
moneys, if necessary, to be deposited (or segregated) sufficient for the
purpose, to the payment of the principal of the Securities of such series at
Maturity. The Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 11.3 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Section 11.6. On or before each sinking fund payment
date, the Company shall pay to the Trustee (or, if the Company is acting as its
own Paying Agent, the Company shall segregate and hold in trust as provided in
Section 10.3) in cash a sum in the currency in which Securities of such series
are payable (except as provided pursuant to Section 3.1) equal to the principal
and any interest accrued to the Redemption Date for Securities or portions
thereof to be redeemed on such sinking fund payment date pursuant to this
Section 12.3.
Neither the Trustee nor the Company shall redeem any Securities of a
series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund for such series during the
continuance of a default in payment of interest, if any, on any Securities of
such series or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph) with respect to the Securities of such
series, except that if the notice of redemption shall have been provided in
accordance with the provisions hereof, the Trustee (or the Company, if the
Company is then acting as its own Paying Agent) shall redeem such Securities if
cash sufficient for that purpose shall be deposited with the Trustee (or
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segregated by the Company) for that purpose in accordance with the terms of this
Article XII. Except as aforesaid, any moneys in the sinking fund for such series
at the time when any such default or Event of Default shall occur and any moneys
thereafter paid into such sinking fund shall, during the continuance of such
default or Event of Default, be held as security for the payment of the
Securities and coupons, if any, of such series; provided, however, that in case
such default or Event of Default shall have been cured or waived herein, such
moneys shall thereafter be applied on the next sinking fund payment date for the
Securities of such series on which such moneys may be applied pursuant to the
provisions of this Section 12.3.
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the payment of the principal
of (and premium, if any) and interest (including any Additional 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 Debt.
SECTION 13.2. Payment Over of Proceeds Upon Dissolution, Etc.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company (each such event, if any, herein
sometimes referred to as a "Proceeding"), then the holders of Senior Debt shall
be entitled to receive payment in full of all amounts due or to become due on
such Senior Debt, or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior Debt,
before the Holders of the Securities are entitled to receive or retain any
payment or distribution of any kind or character, whether in cash, property or
securities (including any payment or distribution which may be payable or
deliverable by reason of the payment of any other Debt of the Company (including
any series of the Securities) subordinated to the payment of the Securities,
such payment or distribution being hereinafter referred to as a "Junior
Subordinated Payment"), on account of principal of (or premium, if any) or
interest (including any Additional Interest) on the Securities or on account of
the purchase or other acquisition of Securities by the Company or any Subsidiary
and to that end the holders of Senior Debt 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, including any Junior
Subordinated Payment, which may be payable or deliverable in respect of the
Securities in any such Proceeding; provided, however, that holders of Senior
Debt shall not be entitled to receive payment of any such amounts to the extent
that such holders would be required by the subordination provisions of such
Senior Debt to pay such amounts over
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to the obligees on trade accounts payable or other liabilities arising in the
ordinary course of the Company's business.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the 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 Junior Subordinated
Payment, before all amounts due or to become due on all Senior Debt are paid in
full or payment thereof is provided for in cash or cash equivalents or otherwise
in a manner satisfactory to the holders of Senior Debt, 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 amounts due or to become due on all Senior
Debt remaining unpaid, to the extent necessary to pay all amounts due or to
become due on all Senior Debt in full, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt; provided, however,
that holders of Senior Debt shall not be entitled to receive payment of any such
amounts to the extent that such holders would be required by the subordination
provisions of such Senior Debt to pay such amounts over to the obligees on trade
accounts payable or other liabilities arising in the ordinary course of the
Company's business.
For purposes of this Article only, the words "any payment or distribution
of any kind or character, whether in 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 securities are subordinated in right of
payment to all then outstanding Senior Debt to substantially the same extent as
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 sale of
all or substantially all of its properties and assets as an entirety to another
Person upon the terms and conditions set forth in Article VIII shall not be
deemed a Proceeding 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 sale such properties and assets as an entirety, as the case may be,
shall, as a part of such consolidation, merger, or sale comply with the
conditions set forth in Article VIII.
SECTION 13.3. Prior Payment to Senior Debt 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 Debt
outstanding at the time such Securities so become due and payable shall be
entitled to receive payment in full of all amounts due on or in respect of such
Senior Debt (including any amounts due upon acceleration), or provision shall be
made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, before the Holders of the Securities
are entitled to receive any payment or distribution of any kind or character,
whether in cash, properties or securities (including any
<PAGE> 80
73
Junior Subordinated Payment) by the Company on account of the principal of (or
premium, if any) or interest (including any Additional Interest) on the
Securities or on account of the purchase or other acquisition of Securities by
the Company or any Subsidiary; provided, however, that nothing in this Section
shall prevent the satisfaction of any sinking fund payment in accordance with
this Indenture or as otherwise specified as contemplated by Section 3.1 for the
Securities of any series by delivering and crediting pursuant to Section 12.2 or
as otherwise specified as contemplated by Section 3.1 for the Securities of any
series Securities which have been acquired (upon redemption or otherwise) prior
to such declaration of acceleration; provided, however, that holders of Senior
Debt shall not be entitled to receive payment of any such amounts to the extent
that such holders would be required by the subordination provisions of such
Senior Debt to pay such amounts over to the obligees on trade accounts payable
or other liabilities arising in the ordinary course of the Company's business.
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 13.2 would be applicable.
SECTION 13.4. No Payment When Senior Debt 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 Debt, or in the
event that any event of default with respect to any Senior Debt shall have
occurred and be continuing and shall have resulted in such Senior Debt becoming
or being declared due and payable prior to the date on which it would otherwise
have become due and payable, unless and until such event of default shall have
been cured or waived or shall have ceased to exist and such acceleration shall
have been rescinded or annulled, or (b) in the event any judicial proceeding
shall be pending with respect to any such default in payment or such event or
default, then no payment or distribution of any kind or character, whether in
cash, properties or securities (including any Junior Subordinated Payment) shall
be made by the Company on account of principal of (or premium, if any) or
interest (including any Additional Interest), if any, on the Securities or on
account of the purchase or other acquisition of Securities by the Company or any
Subsidiary, in each case unless and until all amounts due or to become due on
such Senior Debt are paid in full; provided, however, that nothing in this
Section shall prevent the satisfaction of any sinking fund payment in accordance
with this Indenture or as otherwise specified as contemplated by Section 3.1 for
the Securities of any series by delivering and crediting pursuant to Section
12.2 or as otherwise specified as contemplated by Section 3.1 for the Securities
of any series Securities which have been acquired (upon redemption or otherwise)
prior to such default in payment or event of default; provided, however, that
holders of Senior Debt shall not be entitled to receive payment of any such
amounts to the extent that such holders would be required by the subordination
provisions of such Senior
<PAGE> 81
74
Debt to pay such amounts over to the obligees on trade accounts payable or other
liabilities arising in the ordinary course of the Company's business.
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 13.2 would be applicable.
SECTION 13.5. 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 Proceeding referred to in Section 13.2 or under the conditions
described in Sections 13.3 and 13.4, from making payments at any time of
principal of (and premium, if any) or interest (including Additional Interest)
on the Securities, or (b) the application by the Trustee of any money deposited
with it hereunder to the payment of or on account of the principal of (and
premium, if any) or interest (including any Additional Interest) on the
Securities or the retention of such payment by the Holders, if, at the time of
such application by the Trustee, it did not have knowledge that such payment
would have been prohibited by the provisions of this Article.
SECTION 13.6. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all amounts due or to become due on all
Senior Debt, or the provision for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt, the Holders of
the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Debt pursuant to the provisions
of this Article (equally and ratably with the holders of all indebtedness of the
Company which by its express terms is subordinated to Senior Debt of the Company
to substantially the same extent as the Securities are subordinated to the
Senior Debt and is entitled to like rights of subrogation by reason of any
payments or distributions made to holders of such Senior Debt) to the rights of
the holders of such Senior Debt to receive payments and distributions of cash,
property and securities applicable to the Senior Debt 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 Debt of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Debt by Holders of the Securities or the Trustee, shall, as
among the Company, its creditors other than holders of Senior Debt, and the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Debt.
<PAGE> 82
75
SECTION 13.7. 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 Debt 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 between the Company and the Holders of the Securities, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and interest
(including any Additional Interest) on the Securities as and when the same shall
become due and payable in accordance with their terms; or (b) affect the
relative rights against the Company of the Holders of the Securities and
creditors of the Company other than their rights in relation to the holders of
Senior Debt; 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 including, without limitation, filing and voting claims in any
Proceeding, subject to the rights, if any, under this Article of the holders of
Senior Debt to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
SECTION 13.8. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
SECTION 13.9. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt 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 noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Debt may, at any time and from 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
Debt, 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 Debt, or
otherwise amend or supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding;
(ii) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt; (iii) release any Person liable in
any manner for the collection
<PAGE> 83
76
of Senior Debt; and (iv) exercise or refrain from exercising any rights against
the Company and any other Person.
SECTION 13.10. Notice to Trustee.
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 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 to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee, agent or representative
therefor; provided, however, that if the Trustee shall not have received the
notice provided for in this Section at least two Business Days prior to the date
upon which by the terms hereof any monies may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium, if
any) or interest (including any Additional Interest) on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such monies and to apply the same to
the purpose for which they were received and shall not be affected by any notice
to the contrary which may be received by it within two Business Days prior to
such date.
Subject to the provisions of Section 6.1, 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 Debt (or a trustee therefor) to establish that such
notice has been given by a holder of Senior Debt (or a trustee therefor). 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 Debt 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 Debt 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 to such
Person pending judicial determination as to the right of such Person to receive
such payment.
SECTION 13.11. 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, subject to the provisions of Section 6.1, 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 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 Debt and
other indebtedness of the Company, the amount thereof or payable thereon, the
<PAGE> 84
77
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 13.12. Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt and shall not be
liable to any such holders 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 Debt shall be
entitled by virtue of this Article or otherwise. With respect to the holders of
Senior Debt, the Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this Article and no
implied covenants or obligations with respect to holders of Senior Debt shall be
read into this Indenture against the Trustee.
SECTION 13.13. Rights of Trustee as Holder of Senior Debt; 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 Debt which may at any time
be held by it, to the same extent as any other holder of Senior Debt, and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.7.
SECTION 13.14. 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.
SECTION 13.15. Certain Conversions or Exchanges Deemed Payment.
For the purposes of this Article only, (a) the issuance and delivery of
junior securities upon conversion or exchange of Securities shall not be deemed
to constitute a payment or distribution on account of the principal of (or
premium, if any) or interest (including any Additional Interest) on Securities
or on account of the purchase or other acquisition of Securities, and (b) the
payment, issuance or delivery of cash, property or securities (other than junior
securities) upon conversion or exchange of a Security shall be deemed to
constitute payment on account of the principal of such security. For the
purposes of this Section, the term "junior securities" means (i) shares of any
stock of any class of the Company and (ii) securities of the Company which are
subordinated in right of payment to all Senior Debt which may be outstanding at
the time of issuance or delivery of such securities to substantially the same
extent as, or to a greater extent than, the Securities are so subordinated as
provided in this Article.
<PAGE> 85
78
SECTION 13.16. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments from
money held in trust under Article IV by the Trustee for the payment of principal
of, premium, if any, and interest on the Securities shall not be subordinated to
the prior payment of any Senior Debt of the Company or subject to the
restrictions set forth in this Article XIII and none of the Holders shall be
obligated to pay over any such amount to the Company or any holder of Senior
Debt of the Company or any other creditor of the Company.
<PAGE> 86
79
* * * *
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, all as of the day and year first above written.
FIRST SECURITY CORPORATION
By: /s/ BRAD D. HARDY
--------------------------
Name: Brad D. Hardy
Title: Executive Vice
President and Chief
Financial Officer
(Principal Financial and
Accounting Officer)
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
By: /s/ SANDRA L. CARUBA
--------------------------
Name:Sandra L. Caruba
Title: Vice President
<PAGE> 87
Annex A
FORM OF
DECLARATION OF TRUST
OF
FIRST SECURITY CAPITAL
This DECLARATION OF TRUST, dated as of March __, 1999, is entered
by and among FIRST SECURITY CORPORATION, a Delaware corporation, as Sponsor,
FIRST CHICAGO DELAWARE INC., as the initial Delaware Trustee, THE FIRST NATIONAL
BANK OF CHICAGO, as the initial Property Trustee, and BRAD D. HARDY, SCOTT C.
ULBRICH and DAVID R. WILSON, as Regular Trustees (collectively with the Delaware
Trustee and the Property Trustee, the "Trustees"). The Sponsor and the Trustees
hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "First
Security Capital __", in which name the Trustees, or the Sponsor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trust the sum of Ten Dollars ($10.00). The Trustees hereby acknowledge
receipt of such amount from the Sponsor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they will hold the trust
estate for the Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del C. Section 3801 et seq. (the "Business Trust Act"), and
that this document constitutes the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in the form attached hereto.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party (and
substantially in the form included as an exhibit to the 1933 Act Registration
Statement (as defined below)), to provide for the contemplated operation of the
Trust created hereby and the issuance of preferred securities (the "Preferred
Securities") and common securities by the Trust as such securities will be
described therein. Prior to the execution and delivery of such amended and
restated Declaration of Trust, the Trustees shall not have any duty or
obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery and licenses, consents or approvals required by
applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, in each case on behalf of the Trust as sponsor of the Trust, (i) to
prepare for filing with the Securities and Exchange Commission (the
"Commission") (a) a Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and possibly certain other securities and (b) a Registration Statement on
Form 8-A (the "1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange Act of 1934, as
<PAGE> 88
2
amended; (ii) to file with the New York Stock Exchange or any other national
stock exchange or The Nasdaq National Market (each, an "Exchange") and execute
on behalf of the Trust one or more listing applications and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred Securities to be listed
on any of the Exchanges; (iii) to negotiate and execute an underwriting
agreement among the Trust, the Sponsor and the underwriter(s) thereto relating
to the offer and sale of the Preferred Securities, substantially in the form
included or to be incorporated as an exhibit to the 1933 Act Registration
Statement and (iv) to execute and file such applications, reports, surety bonds,
irrevocable consents, appointments of attorneys for service of process and other
papers and documents as shall be necessary or desirable to register the
Preferred Securities under the securities or "Blue Sky" laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable.
It is hereby acknowledged and agreed that in connection with any
document referred to in clauses (i), (ii) and (iv) above, (A) any Regular
Trustee (or his attorneys-in-fact and agents or the Sponsor as permitted herein)
is authorized to execute such document on behalf of the Trust, provided that the
1933 Act Registration Statement and the 1934 Act Registration Statement shall be
signed by all of the Regular Trustees, and (B) First Chicago Delaware Inc. and
The First National Bank of Chicago, in their capacities as Trustees of the
Trust, shall not be required to join in any such filing or execute on behalf of
the Trust any such document unless required by the rules and regulations of the
Commission, the Exchanges or state securities or blue sky laws, and in such case
only to the extent so required. In connection with all of the foregoing, each
Regular Trustee, solely in such Regular Trustee's capacity as Trustee of the
Trust, hereby constitutes and appoints A. Robert Thorup and R. Gary Winger and
each of them, as such Regular Trustee's true and lawful attorneys-in-fact and
agent, with full power of substitution and resubstitution, for such Regular
Trustee, in such Regular Trustee's name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to the 1933 Act Registration Statement and the 1934 Act Registration Statement
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Commission, the Exchanges and administrators of
state securities or blue sky laws, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as such Regular Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be five (5) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor which may increase or
decrease the number of Trustees; provided that, to the extent required by the
Business Trust Act, one Trustee shall be an entity that has its principal place
of business in the State of Delaware. Subject to the foregoing, the Sponsor is
entitled to appoint or remove without cause any Trustee at any time. The
Trustees may resign upon thirty days prior notice to the Sponsor.
<PAGE> 89
3
7. First Chicago Delaware Inc., in its capacity as trustee, shall
not have the powers or the duties of the Trustee set forth herein (except as may
be required under the Business trust Act) and shall be a Trustee hereunder for
the sole and limited purpose of fulfilling the requirements of Section 3807(a)
of the Business Trust Act.
[The rest of this page has been left blank intentionally;
the signature page follows.]
<PAGE> 90
4
IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year first above
written.
FIRST SECURITY CORPORATION,
as Sponsor
By:_________________________________________
Name: Morgan J. Evans
Title: President and Chief Operating Officer
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By:_________________________________________
Name: Sandra L. Caruba
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By:_________________________________________
Name: Sandra L. Caruba
Title: Vice President
____________________________________________,
Brad D. Hardy, as Regular Trustee
____________________________________________,
Scott C. Ulbrich, as Regular Trustee
____________________________________________,
David R. Wilson, as Regular Trustee
<PAGE> 91
ANNEX B
================================================================================
FORM OF
AMENDED AND RESTATED DECLARATION OF TRUST
Dated as of __________ __, ____
By and Among
FIRST SECURITY CORPORATION,
as Sponsor
BRAD D. HARDY,
as Regular Trustee
SCOTT C. ULBRICH
as Regular Trustee
DAVID R. WILSON,
as Regular Trustee
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
And
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
================================================================================
<PAGE> 92
CROSS REFERENCE TABLE*
Section of Trust
Indenture Act of Section of
1939, as amended Agreement
- ---------------- ---------
310(a).....................................................................6.3
310(b)..........................................................6.3(c); 6.3(d)
310(c)............................................................Inapplicable
311(a)..................................................................2.2(b)
311(b)..................................................................2.2(b)
311(c)............................................................Inapplicable
312(a)..................................................................2.2(a)
312(b)..................................................................2.2(b)
312(c)............................................................Inapplicable
313(a).....................................................................2.3
313(b).....................................................................2.3
313(c).....................................................................2.3
313(d).....................................................................2.3
314(a).....................................................................2.4
314(b)............................................................Inapplicable
314(c).....................................................................2.5
314(d)............................................................Inapplicable
314(e).....................................................................2.5
314(f)............................................................Inapplicable
315(a).........................................................3.9(b); 3.10(a)
315(b)..................................................................2.7(a)
315(c)..................................................................3.9(a)
315(d)..................................................................3.9(b)
316(a).....................................................2.6; 7.5(b); 7.6(c)
316(b)............................................................Inapplicable
316(c)............................................................Inapplicable
317(a)....................................................................3.16
317(b)............................................................Inapplicable
318(a)..................................................................2.1(c)
- --------
* This Cross-Reference Table does not constitute part of the Agreement and
shall not have any bearing upon the interpretation of any of its terms or
provisions.
<PAGE> 93
TABLE OF CONTENTS
Page
----
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions............................1
Affiliate........................................................2
Authorized Officer...............................................2
Beneficial Owners................................................2
Business Day.....................................................2
Business Trust Act...............................................2
Certificate......................................................2
Certificate of Trust.............................................2
Closing Date.....................................................3
Code ...........................................................3
Commission.......................................................3
Common Securities Holder.........................................3
Common Security..................................................3
Common Security Certificate......................................3
Corporate Trust Office...........................................3
Covered Person...................................................3
Debenture Issuer.................................................3
Debenture Issuer Indemnified Person..............................3
Debenture Trustee................................................3
Debentures.......................................................4
Delaware Trustee.................................................4
Depositary.......................................................4
Depositary Participant...........................................4
Direct Action....................................................4
Distribution.....................................................4
Exchange Act.....................................................4
Fiduciary Indemnified Person.....................................4
Fiscal Year......................................................4
Global Security..................................................4
Guarantee........................................................4
Holder...........................................................4
Indemnified Person...............................................4
Indenture........................................................5
Indenture Event of Default.......................................5
Investment Company...............................................5
Investment Company Act...........................................5
Investment Company Event.........................................5
Legal Action.....................................................5
i
<PAGE> 94
Page
----
List of Holders..................................................5
Majority in Liquidation Amount...................................5
New York Stock Exchange..........................................5
Officers' Certificate............................................5
Paying Agent.....................................................6
Payment Amount...................................................6
Preferred Security...............................................6
Preferred Security Certificate...................................6
Person...........................................................6
Property Account.................................................6
Property Trustee.................................................6
Pro Rata.........................................................6
Quorum...........................................................6
Redemption/Distribution Notice...................................6
Redemption Price.................................................7
Regular Trustee..................................................7
Regulatory Capital Event.........................................7
Related Party....................................................7
Responsible Officer..............................................7
Securities.......................................................7
Securities Act...................................................7
Special Event....................................................7
Sponsor..........................................................7
Successor Delaware Trustee.......................................8
Successor Entity.................................................8
Successor Property Trustee.......................................8
Successor Security...............................................8
Super Majority...................................................8
Tax Event........................................................8
10% in Liquidation Amount........................................8
Treasury Regulations.............................................8
Trust Enforcement Event..........................................8
Trust Indenture Act..............................................8
Trustee..........................................................9
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application..........................9
SECTION 2.2 Lists of Holders of Securities............................9
SECTION 2.3 Reports by the Property Trustee..........................10
SECTION 2.4 Periodic Reports to the Property Trustee.................10
SECTION 2.5 Evidence of Compliance with Conditions Precedent.........10
ii
<PAGE> 95
Page
----
SECTION 2.6 Trust Enforcement Events; Waiver.........................10
SECTION 2.7 Trust Enforcement Event; Notice..........................12
ARTICLE 3
ORGANIZATION
SECTION 3.1 Name and Organization....................................12
SECTION 3.2 Office...................................................13
SECTION 3.3 Purpose..................................................13
SECTION 3.4 Authority................................................13
SECTION 3.5 Title to Property of the Trust...........................14
SECTION 3.6 Powers and Duties of the Regular Trustees................14
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.....17
SECTION 3.8 Powers and Duties of the Property Trustee................18
SECTION 3.9 Certain Duties and Responsibilities of the Property
Trustee .................................................20
SECTION 3.10 Certain Rights of Property Trustee.......................22
SECTION 3.11 Delaware Trustee.........................................25
SECTION 3.12 Execution of Documents...................................25
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities...25
SECTION 3.14 Duration of Trust........................................25
SECTION 3.15 Mergers..................................................25
SECTION 3.16 Property Trustee May File Proofs of Claim................27
ARTICLE 4
SPONSOR
SECTION 4.1 Responsibilities of the Sponsor..........................28
SECTION 4.2 Indemnification and Fees and Expenses of the Trustees....29
ARTICLE 5
TRUST COMMON SECURITIES HOLDER
SECTION 5.1 Debenture Issuer's Purchase of Common Securities.........29
SECTION 5.2 Covenants of the Common Securities Holder................29
ARTICLE 6
TRUSTEES
SECTION 6.1 Number of Trustees.......................................30
SECTION 6.2 Delaware Trustee; Eligibility............................30
SECTION 6.3 Property Trustee; Eligibility............................30
iii
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Page
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SECTION 6.4 Qualifications of Regular Trustees and Delaware
Trustee Generally .......................................31
SECTION 6.5 Initial Regular Trustees.................................31
SECTION 6.6 Appointment, Removal and Resignation of Trustees.........31
SECTION 6.7 Vacancies Among Trustees.................................33
SECTION 6.8 Effect of Vacancies......................................33
SECTION 6.9 Meetings.................................................33
SECTION 6.10 Delegation of Power......................................34
SECTION 6.11 Merger, Conversion, Consolidation or Succession to
Business ................................................34
ARTICLE 7
TERMS OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities..................35
SECTION 7.2 Distributions............................................37
SECTION 7.3 Redemption of Securities.................................38
SECTION 7.4 Redemption Procedures....................................38
SECTION 7.5 Voting Rights of Preferred Securities....................40
SECTION 7.6 Voting Rights of Common Securities.......................42
SECTION 7.7 Paying Agent.............................................43
SECTION 7.8 Listing..................................................44
SECTION 7.9 Transfer of Securities...................................44
SECTION 7.10 Mutilated, Destroyed, Lost or Stolen Certificates........45
SECTION 7.11 Deemed Security Holders..................................45
SECTION 7.12 Global Securities........................................46
SECTION 7.13 Over-Allotment Option....................................48
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust.....................48
SECTION 8.2 Liquidation Distribution Upon Dissolution of the Trust...49
ARTICLE 9
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
DELAWARE TRUSTEES OR OTHERS
SECTION 9.1 Liability................................................50
SECTION 9.2 Exculpation..............................................50
SECTION 9.3 Fiduciary Duty...........................................51
SECTION 9.4 Indemnification..........................................52
SECTION 9.5 Outside Businesses.......................................55
iv
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Page
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ARTICLE 10
ACCOUNTING
SECTION 10.1 Fiscal Year.............................................55
SECTION 10.2 Certain Accounting Matters..............................55
SECTION 10.3 Banking.................................................56
SECTION 10.4 Withholding.............................................56
ARTICLE 11
AMENDMENTS AND MEETINGS
SECTION 11.1 Amendments..............................................57
SECTION 11.2 Meetings of the Holders of Securities; Action by
Written Consent ........................................59
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 12.1 Representations and Warranties of the Property Trustee...61
SECTION 12.2 Representations and Warranties of the Delaware Trustee...62
ARTICLE 13
MISCELLANEOUS
SECTION 13.1 Notices.................................................62
SECTION 13.2 Governing Law...........................................63
SECTION 13.3 Intention of the Parties................................63
SECTION 13.4 Headings................................................63
SECTION 13.5 Successors and Assigns..................................64
SECTION 13.6 Partial Enforceability..................................64
SECTION 13.7 Counterparts............................................64
EXHIBITS
Exhibit A Form of Preferred Security Certificate
Exhibit B Form of Common Security Certificate
v
<PAGE> 98
AMENDED AND RESTATED DECLARATION OF TRUST
This AMENDED AND RESTATED DECLARATION OF TRUST (the "Declaration"),
dated as of _______ __, __, is entered into by and among FIRST SECURITY
CORPORATION, a Delaware corporation, as sponsor (the "Sponsor"), BRAD D. HARDY,
SCOTT C. ULBRICH and DAVID R. WILSON, as the initial regular trustees
(collectively, the "Regular Trustees"), THE FIRST NATIONAL BANK OF CHICAGO, a
national banking association, as the initial property trustee (the "Property
Trustee") and FIRST CHICAGO DELAWARE INC., a Delaware corporation, as the
initial Delaware trustee (the "Delaware Trustee" and, together with the Regular
Trustees and the Property Trustee, the "Trustees"), not in their individual
capacities but solely as Trustees, and the holders, from time to time, of
undivided beneficial ownership interests in the Trust to be issued pursuant to
this Declaration.
RECITALS
WHEREAS, the Trustees and the Sponsor established First Security
Capital __ (the "Trust"), a business trust under the Business Trust Act (as
defined, together with other capitalized terms, herein) pursuant to a
Declaration of Trust dated as of _______ __, ___, (the "Original Declaration")
and a Certificate of Trust (the "Certificate of Trust") filed with the Secretary
of State of the State of Delaware on _______________ ___, ____;
WHEREAS, the sole purpose of the Trust shall be to issue and sell
certain securities representing undivided beneficial ownership interests in the
assets of the Trust, to invest the proceeds from such sales in the Debentures
issued by the Debenture Issuer and to engage in only those activities necessary
or incidental thereto; and
WHEREAS, the parties hereto, by this Declaration, amend and restate
each and every term and provision of the Original Declaration;
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees hereby declare that all assets contributed to the Trust be held in
trust for the benefit of the Holders, from time to time, of the Securities
representing undivided beneficial ownership interests in the assets of the Trust
issued hereunder, subject to the provisions of this Declaration.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions.
Unless the context otherwise requires:
<PAGE> 99
2
(a) capitalized terms used in this Declaration but not defined in
the preamble above have the meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles, Sections,
Recitals and Exhibits are to Articles and Sections of, or Recitals and Exhibits
to, this Declaration unless otherwise specified;
(e) unless otherwise defined in this Declaration, a term defined in
the Trust Indenture Act has the same meaning when used in this Declaration; and
(f) a reference to the singular includes the plural and vice versa
and a reference to any masculine form of a term shall include the feminine form
of a term, as applicable.
(g) the following terms have the following meanings:
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Beneficial Owners" means, for Preferred Securities represented by a
Global Security, the Person who acquires an interest in the Preferred Securities
which is reflected on the records of the Depositary through the Depositary
Participants.
"Business Day" means any day, other than a Saturday or Sunday, that
is not a day on which banking institutions in the Borough of Manhattan, The City
of New York or Chicago, Illinois are authorized or required by law, regulation
or executive order to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time,
or any successor legislation.
"Certificate" means a Common Security Certificate or a Preferred
Security Certificate.
"Certificate of Trust" has the meaning specified in the Recitals
hereto.
<PAGE> 100
3
"Closing Date" means the date on which the Preferred Securities are
issued and sold, provided that if the Trust and the Sponsor grant the
underwriters or initial purchasers an option to purchase an additional amount of
Preferred Securities, pursuant to Section 7.13(a), including for the purpose of
covering over-allotments, pursuant to the underwriting agreement or purchase
agreement, as the case may be, and such option is so exercised, then the term
"Closing Date" shall mean such initial or second closing date, as the context
requires.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation. A reference to a specific section of the
Code refers not only to such specific section but also to any corresponding
provision of any federal tax statute enacted after the date of this Declaration,
as such specific section or corresponding provision is in effect on the date of
application of the provisions of this Declaration containing such reference.
"Commission" means the Securities and Exchange Commission or any
successor thereto.
"Common Securities Holder" means First Security Corporation, in its
capacity as purchaser and holder of all of the Common Securities issued by the
Trust.
"Common Security" has the meaning specified in Section 7.1
"Common Security Certificate" means a definitive certificate in
fully registered form representing a Common Security, substantially in the form
of Exhibit B hereto.
"Corporate Trust Office" means the principal office of the Property
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Declaration is
located at One First National Plaza, Suite 0126, Chicago, Illinois 60670-0126,
Attention: Corporate Trust Services Division..
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder.
"Debenture Issuer" means First Security Corporation, in its capacity
as issuer of the Debentures under the Indenture.
"Debenture Issuer Indemnified Person" means (a) any Regular Trustee;
(b) any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee or any Affiliate thereof; or (d) any officer, employee or agent
of the Trust or its Affiliates.
"Debenture Trustee" means The First National Bank of Chicago, in its
capacity as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
<PAGE> 101
4
"Debentures" means the series of debentures to be issued by the
Debenture Issuer under the Indenture and held by the Property Trustee.
"Delaware Trustee" has the meaning specified in Section 6.2.
"Depositary" means, with respect to Securities issuable in whole or
in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities.
"Depositary Participant" means a member of, or participant in, the
Depositary.
"Direct Action" has the meaning specified in Section 3.8(e).
"Distribution" means a distribution payable to Holders of Securities
in accordance with Section 7.2.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System, or any successor thereto.
"Fiduciary Indemnified Person" has the meaning set forth in Section
9.4(b).
"Fiscal Year" has the meaning specified in Section 10.1.
"Global Security" means a fully registered, global Preferred
Security Certificate.
"Guarantee" means the Guarantee Agreement, dated as of ________ __,
____, of the Sponsor in respect of the Securities.
"Holder" means any holder of Securities, as registered on the books
and records of the Trust; provided, however, that in determining whether the
Holders of the requisite liquidation amount of Preferred Securities have voted
on any matter provided for in this Declaration, then for the purpose of such
determination only (and not for any other purpose hereunder), if the Preferred
Securities remain in the form of one or more Global Securities and if the
Depositary which is the holder of such Global Securities has sent an omnibus
proxy to the Trust assigning voting rights to Depositary Participants to whose
accounts the Preferred Securities are credited on the record date, the term
"Holders" shall mean such Depositary Participants acting at the direction of the
Beneficial Owners.
"Indemnified Person" means a Debenture Issuer Indemnified Person or
a Fiduciary Indemnified Person.
<PAGE> 102
5
"Indenture" means the Indenture, dated as of ______ ___, 1999,
between the Debenture Issuer and The First National Bank of Chicago, as Trustee,
pursuant to which the Debentures are to be issued.
"Indenture Event of Default" has the meaning given to the term
"Event of Default" in the Indenture.
"Investment Company" means an investment company as defined in the
Investment Company Act and the regulations promulgated thereunder.
"Investment Company Act" means the Investment Company Act of 1940,
as amended from time to time, or any successor legislation.
"Investment Company Event" means the receipt by the Trust of an
opinion of a nationally recognized independent counsel, to the effect that, as a
result of the occurrence of a change in law or regulation or a written change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act Law"),
there is more than an insubstantial risk that the Trust is or will be considered
an "investment company" that is required to be registered under the Investment
Company Act, which Change in 1940 Act Law becomes effective on or after the
Closing Date.
"Legal Action" has the meaning specified in Section 3.6(g).
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount" means, except as provided in the
terms of the Preferred Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, who are the record
owners of more than 50% of the aggregate liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant class.
"New York Stock Exchange" means the New York Stock Exchange, Inc. or
any successor thereto.
"Officers' Certificate" means, with respect to any Person, a
certificate signed on behalf of such Person by two Authorized Officers of such
Person. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Declaration shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
<PAGE> 103
6
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer on behalf of such Person in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
on behalf of such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer
acting on behalf of such Person, such condition or covenant has been complied
with; provided, that the term "Officers' Certificate", when used with reference
to Regular Trustees who are natural persons shall mean a certificate signed by
two or more of the Regular Trustees which otherwise satisfies the foregoing
requirements.
"Option" has the meaning specified in Section 7.13(a).
"Paying Agent" has the meaning specified in Section 3.8(h).
"Payment Amount" has the meaning specified in Section 7.2(c).
"Preferred Security" has the meaning specified in Section 7.1.
"Preferred Security Certificate" means a definitive certificate in
fully registered form representing a Preferred Security, substantially in the
form of Exhibit A.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Property Account" has the meaning specified in Section 3.8(c).
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 6.3.
"Pro Rata" means pro rata to each Holder of Securities according to
the aggregate liquidation amount of the Securities held by the relevant Holder
in relation to the aggregate liquidation amount of all Securities outstanding.
"Quorum" means a majority of the Regular Trustees or, if there are
only two Regular Trustees, both of them.
"Redemption/Distribution Notice" has the meaning specified in
Section 7.4(a) hereto.
<PAGE> 104
7
"Redemption Price" means the amount for which the Securities will be
redeemed, which amount will equal (i) the redemption price paid by the Debenture
Issuer to repay or redeem, in whole or in part, the Debentures held by the Trust
plus an amount equal to accumulated and unpaid Distributions on such Securities
through the date of their redemption or (ii) such lesser amount as will be
received by the Trust in respect of the Debentures so repaid or redeemed.
"Regular Trustee" means any Trustee other than the Property Trustee
and the Delaware Trustee.
"Regulatory Capital Event" means the receipt by the Trust of an
opinion of independent bank regulatory counsel experienced in such matters to
the effect that, as a result of (a) any amendment to or change (including any
announced prospective change) in the laws (or any regulations thereunder) of the
United States or any rules, guidelines or policies of the Federal Reserve or (b)
any official administrative pronouncement or judicial decision for interpreting
or applying such laws or regulations which amendment or change is effective or
such pronouncement or decision is announced on or after the date of original
issuance of the Preferred Securities, the Preferred Securities do not
constitute, or within 90 days of the date thereof, will not constitute Tier 1
capital (or its then equivalent); provided, however, that the distribution of
the Securities in connection with the liquidation of the Trust by the Debenture
Issuer shall not in and of itself constitute a Regulatory Capital Event unless
such liquidation shall have occurred in connection with a Tax Event or an
Investment Company Event.
"Related Party" means, with respect to the Sponsor, any direct or
wholly owned subsidiary of the Sponsor or any Person that owns, directly or
indirectly, 100% of the outstanding voting securities of the Sponsor.
"Responsible Officer" means, with respect to the Property Trustee,
any officer with direct responsibility for the administration of this
Declaration and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"Special Event" means a Tax Event, a Regulatory Capital Event or an
Investment Company Event.
"Sponsor" means First Security Corporation, a Delaware corporation,
or any successor entity in a merger, consolidation, amalgamation or replacement
by or conveyance, transfer or lease of its properties substantially as an
entirety, in its capacity as sponsor of the Trust.
<PAGE> 105
8
"Successor Delaware Trustee" has the meaning specified in Section
6.6(b).
"Successor Entity" has the meaning specified in Section 3.15(b)(i).
"Successor Property Trustee" has the meaning specified in Section
6.6(b).
"Successor Security" has the meaning specified in Section
3.15(b)(i)b.
"Super Majority" has the meaning specified in Section 2.6(a)(ii).
"Tax Event" means the receipt by the Trust of an opinion of
independent tax counsel experienced in such matters, to the effect that, as a
result of (a) any amendment to, change in or announced proposed change in the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or (b) any official
administrative pronouncement, action or judicial decision interpreting or
applying such laws or regulations, which amendment or change becomes effective
or proposed change, pronouncement, action or decision is announced on or after
the Closing Date, there is more than an insubstantial risk that (i) the Trust
is, or will be within 90 days of the date of such opinion, subject to the United
States federal income tax with respect to income received or accrued on the
Debentures, (ii) interest payable by the Debenture Issuer on the Debentures is
not, or within 90 days of the date of such opinion will not be, deductible, in
whole or in part, by the Debenture Issuer for United States federal income tax
purposes, or (iii) the Trust is, or will be within 90 days of the date of such
opinion, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"10% in Liquidation Amount" means, except as provided in the terms
of the Preferred Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, who are the record
owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust Enforcement Event" in respect of the Securities means an
Indenture Event of Default has occurred and is continuing in respect of the
Debentures.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
<PAGE> 106
9
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue as a trustee in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the Trust's classification as a grantor trust for United States
federal income tax purposes and shall not affect the nature of the Securities as
equity securities representing undivided beneficial ownership interests in the
assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide the Property Trustee (i), except while the Preferred
Securities are represented by one or more Global Securities, at least five
Business Days prior to the date for payment of Distributions, a list, in such
form as the Property Trustee may reasonably require, of the names and addresses
of the Holders of the Securities ("List of Holders") as of the record date
relating to the payment of such Distributions, and (ii) at any other time,
within 30 days of receipt by the Trust of a written request from the Property
Trustee for a List of Holders, as of a date no more than 15 days before such
List of Holders is given to the Property Trustee; provided that neither the
Sponsor nor the Regular Trustees on behalf of the Trust shall be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Property Trustee by the
Sponsor and the Regular Trustees on behalf of the Trust. The Property Trustee
shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it receives in
the capacity as Paying Agent (if acting in such capacity), provided that the
Property Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
<PAGE> 107
10
(b) The Property Trustee shall comply with its obligations under,
and shall be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of
the Trust Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year (commencing with the year
of the first anniversary of the issuance of the Preferred Securities), the
Property Trustee shall provide to the Holders of the Preferred Securities such
reports as are required by Section 313 of the Trust Indenture Act, if any, in
the form and in the manner provided by Section 313 of the Trust Indenture Act.
The Property Trustee shall also comply with the requirements of Section 313(d)
of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to the Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Trust Enforcement Events; Waiver.
(a) The Holders of a Majority in Liquidation Amount of the Preferred
Securities may, by vote or written consent, on behalf of the Holders of all of
the Preferred Securities, waive any past Trust Enforcement Event in respect of
the Preferred Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, the Trust
Enforcement Event under the Declaration shall also not
be waivable; or
(ii) requires the consent or vote of the Holders of greater
than a majority in principal amount of the Debentures (a
"Super Majority") to be waived under the Indenture, the
related Trust Enforcement Event under the Declaration
may only be waived by the vote or written consent of the
Holders of at least the proportion in liquidation amount
of the Preferred Securities that the relevant Super
Majority represents of the aggregate principal amount of
the Debentures outstanding.
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The foregoing provisions of this Section 2.6(a) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act. Upon such waiver, any
such default shall cease to exist, and any Trust Enforcement Event with respect
to the Preferred Securities arising therefrom shall be deemed to have been
cured, for every purpose of this Declaration and the Preferred Securities, but
no such waiver shall extend to any subsequent or other Trust Enforcement Event
with respect to the Preferred Securities or impair any right consequent thereon.
Any waiver by the Holders of the Preferred Securities of a Trust Enforcement
Event with respect to the Preferred Securities shall also be deemed to
constitute a waiver by the Holders of the Common Securities of any such Trust
Enforcement Event with respect to the Common Securities for all purposes of this
Declaration without any further act, vote, or consent of the Holders of the
Common Securities.
(b) The Holders of a Majority in Liquidation Amount of the Common
Securities may, by vote or written consent, on behalf of the Holders of all of
the Common Securities, waive any past Trust Enforcement Event in respect of the
Common Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have
waived such Trust Enforcement Event under the
Declaration as provided below in this Section 2.6(b),
the Trust Enforcement Event under the Declaration shall
also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such
Trust Enforcement Event under the Declaration as
provided below in this Section 2.6(b), the Trust
Enforcement Event under the Declaration may only be
waived by the vote or written consent of the Holders of
at least the proportion in liquidation amount of the
Common Securities that the relevant Super Majority
represents of the aggregate principal amount of the
Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any Trust Enforcement Event and all Trust Enforcement Events with respect to the
Common Securities and the consequences thereof until all Trust Enforcement
Events with respect to the Preferred Securities have been cured, waived or
otherwise eliminated, and until such Trust Enforcement Events with respect to
the Preferred Securities have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Preferred Securities and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee in accordance with the terms of
the Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu
of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b),
upon such cure, waiver
<PAGE> 109
12
or other elimination, any such default shall cease to exist and any Trust
Enforcement Event with respect to the Common Securities arising therefrom shall
be deemed to have been cured for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other Trust Enforcement Event with
respect to the Common Securities or impair any right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Property
Trustee at the direction of the Holders of the Preferred Securities constitutes
a waiver of the corresponding Trust Enforcement Event with respect to the
Preferred Securities under this Declaration. The foregoing provisions of this
Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture
Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Declaration and the Securities, as permitted by the Trust
Indenture Act.
SECTION 2.7 Trust Enforcement Event; Notice.
(a) The Property Trustee shall, within 90 days after the occurrence
of a Trust Enforcement Event actually known to a Responsible Officer of the
Property Trustee, transmit by mail, first class postage prepaid, to the Holders
of the Securities, notices of all such defaults with respect to the Securities,
unless such defaults have been cured before the giving of such notice (the term
"defaults" for the purposes of this Section 2.7(a) being hereby defined to be an
Indenture Event of Default, not including any periods of grace provided for
therein and irrespective of the giving of any notice provided therein); provided
that, except for a default in the payment of principal of (or premium, if any)
or interest on any of the Debentures, the Property Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Property
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of
any default except:
(i) a default under Sections 501(1) and 501(2) of the
Indenture; or
(ii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible
Officer of the Property Trustee charged with the
administration of this Declaration shall have actual
knowledge.
ARTICLE 3
ORGANIZATION
SECTION 3.1 Name and Organization.
The Trust hereby continued is named "First Security Capital __" as
such name may be modified from time to time by the Regular Trustees following
written notice to the Holders of Securities, the Property Trustee and the
Delaware Trustee. The Trust's activities may
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13
be conducted under the name of the Trust or any other name deemed advisable by
the Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o First
Security Corporation, 79 South Main Street, Salt Lake City, Utah 84111. On 10
Business Days' written notice to the Holders of Securities, the Property Trustee
and the Delaware Trustee, the Regular Trustees may designate another principal
office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue
and sell Securities and use the gross proceeds from such sale to acquire the
Debentures, and (b) except as otherwise limited herein, to engage in only those
other activities necessary or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, pledge any of
its assets or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified as a grantor trust for United States
federal income tax purposes.
By the acceptance of this Trust, none of the Trustees, the Sponsor,
the Holders of the Preferred Securities or Common Securities or the Preferred
Securities Beneficial Owners will take any position for United States federal
income tax purposes which is contrary to the classification of the Trust as a
grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Regular Trustees shall have
exclusive authority to carry out the purposes of the Trust. An action taken by
the Regular Trustees in accordance with their powers shall constitute the act of
and serve to bind the Trust and an action taken by the Property Trustee on
behalf of the Trust in accordance with its powers shall constitute the act of
and serve to bind the Trust. In dealing with the Trustees acting on behalf of
the Trust, no Person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Declaration.
(a) Except as expressly set forth in this Declaration and except if
a meeting of the Regular Trustees is called with respect to any matter over
which the Regular Trustees have power to act, any power of the Regular Trustees
may be exercised by, or with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.6(b), provided, that the
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14
registration statements referred to in Section 3.6(b)(i), including any
amendments thereto, shall be signed by or on behalf of a majority of the Regular
Trustees; and
(c) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures and
the Property Account or as otherwise provided in this Declaration, legal title
to all assets of the Trust shall be vested in the Trust. The Holders shall not
have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial ownership interest in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to establish the terms and form of the Preferred Securities and
the Common Securities in the manner specified in Section 7.1 and issue and sell
the Preferred Securities and the Common Securities in accordance with this
Declaration; provided, however, that the Trust may issue no more than one series
of Preferred Securities and no more than one series of Common Securities, and,
provided further, that there shall be no interests in the Trust other than the
Securities, and the issuance of Securities shall be limited to a one-time,
simultaneous issuance of both Preferred Securities and Common Securities on the
Closing Date;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any other
national stock exchange or automated quotation system
for listing of any Preferred Securities, the Guarantee
and the Debentures;
(ii) execute and file with the Commission one or more
registration statements on the applicable forms prepared
by the Sponsor, including any amendments thereto,
pertaining to the Preferred Securities, the Guarantee
and the Debentures;
(iii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be
necessary, in order to qualify or register all or part
of the Preferred Securities in any State in which the
Sponsor has determined to qualify or register such
Preferred Securities for sale; and
<PAGE> 112
15
(iv) negotiate the terms of and execute and enter into an
underwriting agreement and other related agreements
providing for the sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Debentures to be held of record
in the name of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Holders of the Common Securities;
(d) to give the Sponsor and the Property Trustee prompt written
notice of the occurrence of a Special Event; provided that the Regular Trustees
shall consult with the Sponsor and the Property Trustee before taking or
refraining from taking any action in relation to any such Special Event;
(e) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Holders, of Common Securities
as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required
of the Regular Trustees pursuant to the terms of this Declaration and the
Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants to conduct only those services that the Regular Trustees have
authority to conduct directly, and to and pay reasonable compensation for such
services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the
Trust Indenture Act to the Property Trustee, which certificate may be executed
by any Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
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16
(m) to give prompt written notice to the Holders of the Securities
of any notice received from the Debenture Issuer of its election to defer
payments of interest on the Debentures by extending the interest payment period
under the Debentures as authorized by the Indenture;
(n) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Preferred
Securities and the Holders of the Common Securities or to enable the Trust to
effect the purposes for which the Trust was created;
(o) to take any action, not inconsistent with applicable law, that
the Regular Trustees determine in their discretion to be necessary or desirable
in carrying out the purposes and functions of the Trust as set out in Section
3.3 or the activities of the Trust as set out in this Section 3.6, including,
but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment
Company Act;
(ii) causing the Trust to be classified as a grantor trust
for United States federal income tax purposes; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the
Debenture Issuer for United States federal income tax
purposes.
(p) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Regular Trustees, on behalf of the
Trust; and
(q) to execute and deliver all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing.
The Regular Trustees shall exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Regular Trustees shall have no power
to, and shall not, take any action that is inconsistent with the purposes and
functions of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
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17
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and none of the Trustees (including the
Property Trustee) shall cause the Trust to, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust shall not
and none of the Trustees (including the Property Trustee) shall cause the Trust
to:
(i) invest any proceeds received by the Trust from holding
the Debentures, but shall distribute all such proceeds
to Holders of Securities pursuant to the terms of this
Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness;
(v) possess any power or otherwise act in such a way as to
vary the Trust assets;
(vi) possess any power or otherwise act in such a way as to
vary the terms of the Securities in any way whatsoever
(except to the extent expressly authorized in this
Declaration or by the terms of the Securities);
(vii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust
other than the Securities;
(viii) other than as provided in this Declaration or by the
terms of the Securities, (A) direct the time, method
and place of exercising any trust or power conferred
upon the Debenture Trustee with respect to the
Debentures, (B) waive any past default that is
waivable under the Indenture, (C) exercise any right
to rescind or annul any declaration that the principal
of all the Debentures shall be due and payable, or (D)
consent to any amendment, modification or termination
of the Indenture or the Debentures where such consent
shall be required unless the Trust shall have received
an opinion of counsel to the effect that such
modification will not cause more than an insubstantial
risk that the Trust will be deemed an Investment
Company required to be registered under the Investment
Company Act, or the Trust will not be classified as a
grantor trust for United States federal income tax
purposes;
(ix) take any action inconsistent with the status of the
Trust as a grantor trust for United States federal
income tax purposes; or
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18
(x) revoke any action previously authorized or approved by
vote of the Holders of the Preferred Securities.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Property Trustee for the benefit of the Trust and the
Holders of the Securities. The right, title and interest of the Property Trustee
to the Debentures shall vest automatically in each Person who may hereafter be
appointed as Property Trustee in accordance with Section 6.6. Such vesting and
cessation of title shall be effective whether or not conveyancing documents with
regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Account") in the name of
and under the exclusive control of the Property Trustee
on behalf of the Holders of the Securities and, upon the
receipt of payments of funds made in respect of the
Debentures held by the Property Trustee, deposit such
funds into the Property Account and make payments to the
Holders of the Preferred Securities and Holders of the
Common Securities from the Property Account in
accordance with Section 7.2. Funds in the Property
Account shall be held uninvested until disbursed in
accordance with this Declaration. The Property Account
shall be an account that is maintained with a banking
institution the rating on whose long-term unsecured
indebtedness is at least equal to the rating assigned to
the Preferred Securities by a "nationally recognized
statistical rating organization", within the meaning of
Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the
Preferred Securities and the Common Securities to the
extent the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the
Regular Trustees in accordance with the terms of the
Securities, engage in such ministerial activities as so
directed and as shall be necessary or appropriate to
effect the distribution of the Debentures to Holders of
Securities upon the occurrence of a Special Event.
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19
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of this Declaration and the Securities.
(e) The Property Trustee shall take any Legal Action which arises
out of or in connection with a Trust Enforcement Event of which a Responsible
Officer of the Property Trustee has actual knowledge or the Property Trustee's
duties and obligations under this Declaration or the Trust Indenture Act;
provided, however, that if a Trust Enforcement Event has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer
to pay interest, principal or other required payments on the Debentures on the
date such interest, principal or other required payments are otherwise payable
(or in the case of redemption, on the redemption date), then a Holder of
Preferred Securities may directly institute a proceeding against the Debenture
Issuer for enforcement of payment to such Holder of the principal of or interest
on Debentures having a principal amount equal to the aggregate liquidation
amount of the Preferred Securities of such Holder (a "Direct Action") on or
after the respective due date specified in the Debentures. Notwithstanding
anything to the contrary in this Declaration or the Indenture, the Debenture
Issuer shall have the right to set-off any payment it is otherwise required to
make under the Indenture in respect of any Preferred Security to the extent the
Debenture Issuer has heretofore made, or is currently on the date of such
payment making, a payment under the Guarantee relating to such Preferred
Security or under Section 5.8 of the Indenture.
(f) The Property Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders
of Securities pursuant to the terms of the Securities;
or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section
6.6.
(g) The Property Trustee shall have the legal power to exercise all
of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if a Trust Enforcement Event actually known to a Responsible
Officer of the Property Trustee occurs and is continuing, the Property Trustee
shall, for the benefit of Holders of the Securities, enforce its rights as
holder of the Debentures subject to the rights of the Holders pursuant to the
terms of such Securities.
(h) The Property Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Securities and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Property Trustee at any time and a successor
Paying Agent or additional Paying Agents may be appointed at any time by the
Property Trustee.
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20
(i) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the Regular Trustees
set forth in Section 3.6.
The Property Trustee shall exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Property Trustee shall have no power
to, and shall not, take any action that is inconsistent with the purposes and
functions of the Trust set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property
Trustee.
(a) The Property Trustee, before the occurrence of any Trust
Enforcement Event and after the curing of all Trust Enforcement Events that may
have occurred, shall undertake to perform only such duties as are specifically
set forth in this Declaration and no implied covenants shall be read into this
Declaration against the Property Trustee. In case a Trust Enforcement Event has
occurred (that has not been cured or waived pursuant to Section 2.6) of which a
Responsible Officer of the Property Trustee has actual knowledge, the Property
Trustee shall exercise such of the rights and powers vested in it by this
Declaration, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of a Trust Enforcement Event and
after the curing or waiving of all such Trust
Enforcement Events that may have occurred:
a. the duties and obligations of the Property Trustee
shall be determined solely by the express
provisions of this Declaration and the Property
Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Declaration, and no
implied covenants or obligations shall be read
into this Declaration against the Property
Trustee; and
b. in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may
conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon any certificates or
opinions furnished to the Property Trustee and
conforming to the requirements of this
Declaration; but in the case of any such
certificates or opinions that by any provision
hereof are specifically required to be furnished
to the Property Trustee, the Property Trustee
shall be under a duty
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21
to examine the same to determine whether or not
they conform to the requirements of this
Declaration;
(ii) the Property Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer
of the Property Trustee, unless it shall be proved that
the Property Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it without
negligence, in good faith in accordance with the
direction of the Holders of not less than a Majority in
Liquidation Amount of the Securities relating to the
time, method and place of conducting any proceeding for
any remedy available to the Property Trustee, or
exercising any trust or power conferred upon the
Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of
any of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the
terms of this Declaration or indemnity reasonably
satisfactory to the Property Trustee against such risk
or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe- keeping and physical preservation of the
Debentures and the Property Account shall be to deal
with such property in a similar manner as the Property
Trustee deals with similar property for its own account,
subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration
and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or
sufficiency of the Debentures or the payment of any
taxes or assessments levied thereon or in connection
therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may
otherwise agree with the Sponsor. Money held by the
Property Trustee need not be segregated from other funds
held by it except in relation to the Property Account
maintained by the Property Trustee pursuant to Section
3.8(c)(i) and except to the extent otherwise required by
law; and
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22
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or
the Sponsor with their respective duties under this
Declaration, nor shall the Property Trustee be liable
for any default or misconduct of the Regular Trustees
or the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall
be fully protected in acting or refraining from acting
upon any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been
signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Declaration shall be
sufficiently evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Declaration,
the Property Trustee shall deem it desirable that a
matter be proved or established before taking,
suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad
faith on its part, request and conclusively rely upon
an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Sponsor or
the Regular Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument
(including any financing or continuation statement or
any filing under tax or securities laws) or any
rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel of its
choice or other experts and the advice or opinion of
such counsel and experts with respect to legal matters
or advice within the scope of such experts' area of
expertise shall be full and complete authorization and
protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in
accordance with such advice or opinion, such counsel
may be counsel to the Sponsor or any of its
Affiliates, and may include any of its employees. The
Property Trustee shall have the right at any time to
seek instructions
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23
concerning the administration of this Declaration from
any court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Declaration at the request or direction of any
Holder, unless such Holder shall have provided to the
Property Trustee security and indemnity, reasonably
satisfactory to the Property Trustee, against the
costs, expenses (including attorneys' fees and
expenses and the expenses of the Property Trustee's
agents, nominees or custodians) and liabilities that
might be incurred by it in complying with such request
or direction, including such reasonable advances as
may be requested by the Property Trustee; provided
that, nothing contained in this Section 3.10(a) shall
be taken to relieve the Property Trustee, upon the
occurrence of a Trust Enforcement Event, of its
obligation to exercise the rights and powers vested in
it by this Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the
Property Trustee, in its discretion, may make such
further inquiry or investigation into such facts or
matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder
either directly or by or through agents, custodians,
nominees or attorneys and the Property Trustee shall
not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due
care by it hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the
Securities, and the signature of the Property Trustee
or its agents alone shall be sufficient and effective
to perform any such action and no third party shall be
required to inquire as to the authority of the
Property Trustee to so act or as to its compliance
with any of the terms and provisions of this
Declaration, both of which shall be conclusively
evidenced by the Property Trustee's or its agent's
taking such action;
(x) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the
Property Trustee (i) may request instructions from
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24
the Holders of the Securities which instructions may
only be given by the Holders of the same proportion in
liquidation amount of the Securities as would be
entitled to direct the Property Trustee under the
terms of the Securities in respect of such remedy,
right or action, (ii) may refrain from enforcing such
remedy or right or taking such other action until such
instructions are received, and (iii) shall be
protected in conclusively relying on or acting in or
accordance with such instructions;
(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under
any obligation to take any action that is
discretionary under the provisions of this
Declaration;
(xii) the Property Trustee shall not be liable for any
action taken, suffered or omitted to be taken by it
without negligence, in good faith and reasonably
believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this
Declaration;
(xiii) without prejudice to any other rights available to the
Property Trustee under applicable law, when the
Property Trustee incurs expenses or renders services
in connection with a bankruptcy, such expenses
(including the fees and expenses of its counsel) and
the compensation for such services are intended to
constitute expenses of administration under any
bankruptcy law or law relating to creditors rights
generally;
(xiv) the Property Trustee shall not be charged with
knowledge of a Trust Enforcement Event unless a
Responsible Officer of the Property Trustee obtains
actual knowledge of such event or the Property Trustee
receives written notice of such event from Holders
holding more than a Majority in Liquidation Amount of
the Preferred Securities; and
(xv) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of such
Securities, and the signature of the Property Trustee
or one of its agents shall by itself be sufficient and
effective to perform any such action and no third
party shall be required to inquire as to the authority
of the Property Trustee to so act or as to its
compliance with any of the terms and provisions of
this Declaration, both of which shall be conclusively
evidenced by the Property Trustee's or its agent's
taking such action.
(b) No provision of this Declaration shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which
<PAGE> 122
25
the Property Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, or to exercise any such right,
power, duty or obligation. No permissive power or authority available to the
Property Trustee shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than
Section 6.2, the Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities of
the Regular Trustees or the Property Trustee described in this Declaration.
Except as set forth in Section 6.2, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of Section 3807(a)
of the Business Trust Act. In the event the Delaware Trustee shall at any time
be required to take any action or perform any duty hereunder with respect to the
Trust, the Delaware Trustee shall be entitled to all of the same rights as the
Property Trustee listed in Section 3.9(b) and Section 3.10.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents that the
Regular Trustees have the power and authority to execute pursuant to Section
3.6; provided that, the registration statements referred to in Section
3.6(b)(ii), including any amendments thereto, shall be signed by or on behalf of
a majority of the Regular Trustees.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall
be taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration, the Securities, the Debentures or the Indenture.
SECTION 3.14 Duration of Trust.
The Trust shall exist until terminated pursuant to the provisions of
Article 8 hereof.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or into,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described in Section
3.15(b) and (c) or Section 8.2.
(b) The Trust may, at the request of the Sponsor and with the
consent of the Regular Trustees or, if there are more than two, a majority of
the Regular Trustees and without the consent of the Holders of the Securities,
the Delaware Trustee or the Property Trustee,
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consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties substantially as an entirety to a trust
organized as such under the laws of any State; provided, that:
(i) if the Trust is not the successor, such successor entity
(the "Successor Entity") either:
a. expressly assumes all of the obligations of the
Trust with respect to the Securities; or
b. substitutes for the Preferred Securities other
securities having substantially the same terms as
the Preferred Securities (the "Successor
Securities") so long as the Successor Securities
rank the same as the Preferred Securities rank in
priority with respect to Distributions and
payments upon liquidation, redemption and
otherwise;
(ii) the Debenture Issuer expressly appoints a trustee of
such Successor Entity that possesses the same powers and
duties as the Property Trustee as the holder of the
Debentures;
(iii) the Preferred Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities
exchange or with any other or organization on which the
Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor
Securities) to be downgraded by any nationally
recognized statistical rating organization;
(v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders of
the Preferred Securities (including any Successor
Securities) in any material respect;
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease the Sponsor
has received an opinion of independent counsel to the
Trust experienced in such matters to the effect that:
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a. such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease
does not adversely affect the rights,
preferences and privileges of the Holders of
the Preferred Securities (including any
Successor Securities) in any material
respect;
b. following such merger, consolidation,
amalgamation, replacement, conveyance,
transfer or lease neither the Trust nor the
Successor Entity will be required to register
as an Investment Company; and
c. following such merger, consolidation,
amalgamation or replacement, the Trust (or
the Successor Entity) will continue to be
classified as a grantor trust for United
States federal income tax purposes;
(viii) the Sponsor or any permitted successor or assignee
owns all of the common securities and guarantees the
obligations of such Successor Entity under the
Successor Securities at least to the extent provided
by the Securities Guarantee; and
(ix) such Successor Entity expressly assumes all of the
obligations of the Trust with respect to the
Trustees.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in aggregate liquidation amount of the
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to, any other entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it, if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or Successor
Entity to be classified as other than a grantor trust for United States federal
income tax purposes and each Holder of the Securities not to be treated as
owning an undivided interest in the Debentures.
SECTION 3.16 Property Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Trust or any other obligor
upon the Securities or the property of the Trust or of such other obligor or
their creditors, the Property Trustee (irrespective of whether any Distributions
on the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
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(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Securities (or, if the
Securities are original issue discount Securities, such portion of the
liquidation amount as may be specified in the terms of such Securities) and to
file such other papers or documents as may be necessary or advisable in order to
have the claims of the Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
and counsel) and of the Holders allowed in such judicial proceeding, and
(b) 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 Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement adjustment or compensation affecting the
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
ARTICLE 4
SPONSOR
SECTION 4.1 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities,
the Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission under the
Securities Act or the Exchange Act one or more registration statements on the
applicable forms, including any amendments thereto, pertaining to the Preferred
Securities, the Guarantee and the Debentures;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and to do
any and all such acts, other than actions which must be taken by the Trust, and
advise the Trust of actions it must take, and prepare for execution and filing
any documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of any such
States;
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(c) to prepare for filing by the Trust an application to the New
York Stock Exchange or any other national stock exchange or the NASDAQ Stock
Market for listing upon notice of issuance of any Preferred Securities, the
Guarantee and the Debentures; and
(d) to negotiate the terms of and to execute on behalf of the Trust
an underwriting agreement and other related agreements providing for the sale of
the Preferred Securities.
SECTION 4.2 Indemnification and Fees and Expenses of the Trustees.
The Sponsor, in its capacity as Debenture Issuer, agrees to
indemnify the Property Trustee and the Delaware Trustee for, and to hold each of
them harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Property Trustee or the Delaware
Trustee, as the case may be, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the costs and
expenses of defending either of them against any claim or liability in
connection with the exercise or performance of any of their respective powers or
duties hereunder; the provisions of this Section 4.2 shall survive the
resignation or removal of the Delaware Trustee or the Property Trustee or the
termination of this Declaration.
ARTICLE 5
TRUST COMMON SECURITIES HOLDER
SECTION 5.1 Debenture Issuer's Purchase of Common Securities.
On the applicable Closing Date, the Debenture Issuer will purchase
all of the Common Securities issued by the Trust on such Closing Date, for an
amount at least equal to 3% of the capital of the Trust at such time, at the
same time as Preferred Securities are sold; provided that, if the Option set
forth in Section 7.13(a) is exercised, then the Debenture Issuer will purchase
such additional Common Securities from the Trust on such second Closing Date
such that it will then hold at least 3% of the capital of the Trust.
The aggregate stated liquidation amount of Common Securities
outstanding at any time shall not be less than 3% of the capital of the Trust.
SECTION 5.2 Covenants of the Common Securities Holder.
For so long as the Preferred Securities remain outstanding, the
Common Securities Holder will covenant (i) to maintain, directly or indirectly,
100% ownership of the Common Securities, (ii) to cause the Trust to remain a
statutory business trust and not to voluntarily dissolve, wind up, liquidate or
be terminated, except as permitted by this Declaration, (iii) to use its
commercially reasonable efforts to ensure that the Trust will not be an
investment company for purposes of the Investment Company Act, and (iv) to take
no action which would
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be reasonably likely to cause the Trust to be classified as an association or a
publicly traded partnership taxable as a corporation for United States federal
income tax purposes.
ARTICLE 6
TRUSTEES
SECTION 6.1 Number of Trustees.
The number of Trustees initially shall be five, and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may
be increased or decreased by vote of the Holders of a Majority in Liquidation
Amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities or by written consent in lieu of such meeting; provided
that the number of Trustees shall be at least three; and provided further that
(1) the Delaware Trustee, in the case of a natural person, shall be a person who
is a resident of the State of Delaware or that, if not a natural person, is an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable law; (2) at least one Regular
Trustee is an employee or officer of, or is affiliated with, the Sponsor; and
(3) one Trustee shall be the Property Trustee for so long as this Declaration is
required to qualify as an indenture under the Trust Indenture Act, and such
Trustee may also serve as Delaware Trustee if it meets the applicable
requirements.
SECTION 6.2 Delaware Trustee; Eligibility.
If required by the Business Trust Act, one Trustee (which may be the
Property Trustee) (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place
of business in the State of Delaware, and otherwise meets the requirements of
applicable law,
provided that, if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application.
SECTION 6.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (which may be the
Delaware Trustee) which shall act as Property Trustee which shall:
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(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or other Person permitted by the Commission
to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise
corporate trust owners, having a combined capital and
surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination
by federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority
referred to above, then for the purposes of this Section
6.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Property Trustee shall cease to be eligible
to so act under Section 6.3(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 6.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Guarantee shall be deemed to be specifically described in
this Declaration for purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
SECTION 6.4 Qualifications of Regular Trustees and Delaware Trustee
Generally.
Each Regular Trustee and the Delaware Trustee (unless the Property
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION 6.5 Initial Regular Trustees.
The initial Regular Trustees shall be:
Brad D. Hardy, Scott C. Ulbrich and David R. Wilson, the business
address of all of whom is c/o First Security Corporation, 79 South Main Street,
Salt Lake City, Utah 84111.
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SECTION 6.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 6.6(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor;
(ii) after the issuance of any Securities (but prior to the
occurrence of an Indenture Event of Default), by vote of
the Holders of a Majority in Liquidation Amount of the
Common Securities voting as a class at a meeting of the
Holders of the Common Securities; and
(iii) after the issuance of the Preferred Securities and the
occurrence of an Indenture Event of Default, by vote of
the Holders of a majority in Liquidation Amount of the
Preferred Securities.
(b) The Trustee that acts as Property Trustee shall not be removed
in accordance with Section 6.6(a) until a successor Trustee possessing the
qualifications to act as Property Trustee under Section 6.3(a) (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
written instrument executed by such Successor Property Trustee and delivered to
the Regular Trustees and the Sponsor. The Trustee that acts as Delaware Trustee
shall not be removed in accordance with Section 6.6(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections 6.2 and
6.4 (a "Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his or its
successor shall have been appointed, until his death or its dissolution or until
his or its removal or resignation. Any Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing signed by
the Trustee and delivered to the Sponsor and the Trust, which resignation shall
take effect upon such delivery or upon such later date as is specified therein;
provided, however, that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
a. until a Successor Property Trustee has been
appointed and has accepted such appointment by
instrument executed by such Successor Property
Trustee and delivered to the Trust, the Sponsor
and the resigning Property Trustee; or
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b. until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to
the holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor
Delaware Trustee has been appointed and has accepted
such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or Successor Property
Trustee, as the case may be, if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 6.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee,
as the case may be, shall have been appointed and accepted appointment as
provided in this Section 6.6 within 60 days after delivery to the Sponsor and
the Trust of an instrument of resignation or removal, the resigning or removed
Property Trustee or Delaware Trustee, as applicable, may petition any court of
competent jurisdiction for appointment of a Successor Property Trustee or
Successor Delaware Trustee, as applicable. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Property Trustee or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
SECTION 6.7 Vacancies Among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 6.1, or if the number of Trustees is
increased pursuant to Section 6.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Regular Trustees or, if there
are more than two, a majority of the Regular Trustees shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 6.6.
SECTION 6.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul, dissolve or terminate the Trust. Whenever a
vacancy in the number of Regular Trustees shall occur, until such vacancy is
filled by the appointment of a Regular Trustee in accordance with Section 6.6,
the Regular Trustees in office, regardless of their number, shall have all the
powers granted to the Regular Trustees and shall discharge all the duties
imposed upon the Regular Trustees by this Declaration.
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SECTION 6.9 Meetings.
If there is more than one Regular Trustee, meetings of the Regular
Trustees shall be held from time to time upon the call of any Regular Trustee.
Regular meetings of the Regular Trustees may be held at a time and place fixed
by resolution of the Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 48
hours before such meeting. Notice of any telephonic meetings of the Regular
Trustees shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of a Regular Trustee at a meeting shall constitute a waiver of notice
of such meeting except where a Regular Trustee attends a meeting for the express
purpose of objecting to the transaction of any activity on the ground that the
meeting has not been lawfully called or convened. Unless provided otherwise in
this Declaration, any action of the Regular Trustees may be taken at a meeting
by vote of a majority of the Regular Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided that a
Quorum is present, or without a meeting by the unanimous written consent of the
Regular Trustees. In the event there is only one Regular Trustee, any and all
action of such Regular Trustee shall be evidenced by a written consent of such
Regular Trustee.
SECTION 6.10 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any natural person over the age of 21 his, her or
its power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing.
(b) The Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
SECTION 6.11 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Property Trustee, the Delaware
Trustee or any Regular Trustee that is not a natural person may be merged or
converted or with such Trustee may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of such Trustee shall be the successor of such 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.
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ARTICLE 7
TERMS OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue one
class of preferred securities representing undivided beneficial ownership
interests in the assets of the Trust and one class of common securities
representing undivided beneficial ownership interests in the assets of the
Trust.
(i) Preferred Securities. The Preferred Securities of the
Trust have an aggregate liquidation amount with respect
to the assets of the Trust of _______________ dollars
($_______________) with respect to the initial closing
of the sale of Preferred Securities and, if the Option
set forth in Section 7.13(a) is exercised, an additional
aggregate liquidation amount with respect to the assets
of the Trust of __________ dollars ($__________) with
respect to the second closing of the sale of Preferred
Securities; provided that the maximum aggregate
liquidation amount of Preferred Securities of the Trust
shall not exceed ____________ dollars ($_________). The
Preferred Securities are hereby designated for
identification purposes only as "____% Preferred
Securities" (the "Preferred Securities"). The Preferred
Security Certificates evidencing the Preferred
Securities shall be substantially in the form of Exhibit
A to this Declaration, with such changes and additions
thereto or deletions therefrom as may be required by
ordinary usage, custom or practice or to conform to the
rules of any stock exchange on which the Preferred
Securities are listed or quoted subject to Section
7.13(b).
(ii) Common Securities. The Common Securities of the Trust
have an aggregate liquidation amount with respect to the
assets of the Trust of __________ dollars ($__________)
with respect to the initial closing of the sale of
Common Securities and, if the Option set forth in
Section 7.13(a) is exercised, an additional aggregate
liquidation amount with respect to the assets of the
Trust of __________ dollars ($__________) with respect
to the second closing of the sale of Common Securities;
provided that the maximum aggregate liquidation amount
of common securities issued by the Trust shall not
exceed __________ dollars ($___________). The Common
Securities are hereby designated for identification
purposes only as "____% Common Securities" (the "Common
Securities" and, together with the Preferred Securities,
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the "Securities"). The Common Security Certificates
evidencing the Common Securities shall be substantially
in the form of Exhibit B to this Declaration, with such
changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice
subject to section 7.13(b).
(b) Payment of Distributions on, and payment of the Redemption Price
upon a redemption of, the Preferred Securities and the Common Securities, as
applicable, shall be made Pro Rata based on the liquidation amount of such
Preferred Securities and Common Securities; provided, however, that if on any
date on which amounts payable on distribution or redemption, an Indenture Event
of Default shall have occurred and be continuing, no payment of any Distribution
on, or Redemption Price of, any of the Common Securities, and no other payment
on account of the redemption, liquidation or other acquisition of such Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions on all of the outstanding Preferred Securities for all
Distribution periods terminating on or prior thereto, or, in the case of amounts
payable on redemption, the full amount of the Redemption Price for all of the
outstanding Preferred Securities then called for redemption, shall have been
made or provided for, and all funds available to the Property Trustee shall
first be applied to the payment in full in cash of all Distributions on, or the
Redemption Price of, the Preferred Securities then due and payable. The Trust
shall issue no securities or other interests in the assets of the Trust other
than the Preferred Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by a
Regular Trustee. Such signature shall be the manual or facsimile signature of
any present or any future Regular Trustee. In case a Regular Trustee of the
Trust who shall have signed any of the Certificates shall cease to be such
Regular Trustee before the Certificates so signed shall be delivered by the
Trust, such Certificates nevertheless may be delivered as though the person who
signed such Certificates had not ceased to be such Regular Trustee; and any
Certificate may be signed on behalf of the Trust by such persons who, at the
actual date of execution of such Certificate, shall be the Regular Trustees of
the Trust, although at the date of the execution and delivery of the Declaration
any such person was not such a Regular Trustee. Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as evidenced by their execution thereof, and
may have such letters, numbers or other marks of identification or designation
and such legends or endorsements as the Regular Trustees may deem appropriate,
or as may be required to comply with any law or with any rule or regulation of
any stock exchange on which Securities may be listed, or to conform to usage.
A Certificate representing Preferred Securities shall not be valid
until authenticated by the manual signature of an authorized officer of the
Property Trustee. Such signature shall be conclusive evidence that such
Certificate has been authenticated under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee, the
Property Trustee shall authenticate the Certificates representing Preferred
Securities for original issue.
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The aggregate number of Preferred Securities outstanding at any time shall not
exceed the liquidation amount set forth in Section 7.1(a)(i).
The Property Trustee may appoint an authenticating agent acceptable
to the Trust to authenticate Certificates. An authenticating agent may
authenticate Certificates whenever the Property Trustee may do so. Each
reference in this Declaration to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Property Trustee to deal with the Sponsor or an Affiliate of the Sponsor.
(d) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable undivided beneficial ownership interests in the assets of the
Trust.
(f) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration and the terms of the Securities, the Guarantee,
the Indenture and the Debentures.
(g) The holders of the Securities shall have no preemptive or
similar rights.
SECTION 7.2 Distributions.
(a) Holders of Securities shall be entitled to receive cumulative
cash Distributions at the rate per annum of % of the stated liquidation amount
of $__ per Security. The amount of Distributions payable for any period shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount of
distributions payable for any period shorter than a full quarterly distribution
period shall be computed on the basis of a 30- day month and for periods of less
than a month, the actual number of days elapsed per 30-day month. Subject to
Section 7.1(b), Distributions shall be made on the Preferred Securities and the
Common Securities on a Pro Rata basis. Distributions on the Securities shall,
from the date of original issue, accrue and be cumulative and shall be payable
[quarterly][semi- annually], in arrears, on each __________ [, __________,
_________] and _________, commencing _________ __, ____, when, as and if
available for payment, by the Property Trustee, except as otherwise described
below. Distributions are payable only to the extent that payments are made in
respect of the Debentures held by the Property Trustee and to the extent that
the Trust has funds available for the payment of such Distributions in the
Property Account.
(b) Distributions not paid on the scheduled payment date will
accumulate and compound [quarterly][semi-annually] at the rate of % per annum
("Compounded Distributions"). "Distributions" shall mean ordinary cumulative
distributions together with any Compounded Distributions.
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(c) If and to the extent that the Debenture Issuer makes a payment
of interest, premium and/or principal on the Debentures held by the Property
Trustee (the amount of any such payment being a "Payment Amount"), the Property
Trustee shall and is directed, to the extent funds are available for that
purpose, to make a Pro Rata distribution of the Payment Amount to Holders,
subject to Section 7.1(b).
(d) Distributions on the Securities shall be payable to the Holders
thereof as they appear on the register of the Trust as of the close of business
on the relevant record dates. While the Preferred Securities are represented by
one or more Global Securities, the relevant record dates shall be the close of
business on the Business Day next preceding such Distribution payment date,
unless a different regular record date is established or provided for the
corresponding interest payment date on the Debentures. The relevant record dates
for the Common Securities shall be the same as for the Preferred Securities. If
the Preferred Securities shall not continue to remain represented by one or more
Global Securities, the relevant record dates for the Preferred Securities shall
be selected by the Regular Trustees and shall be at least one Business Day prior
to the relevant payment dates. At all times, the Distribution payment dates
shall correspond to the interest payment dates on the Debentures. Distributions
payable on any Securities that are not punctually paid on any Distribution
payment date, as a result of the Debenture Issuer having failed to make a
payment under the Debentures, shall cease to be payable to the Person in whose
name such Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined in accordance with this Declaration. If any date on which
Distributions are payable on the Securities is not a Business Day, then payment
of the Distribution payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, with the same force and effect as if made on such payment date.
(e) In the event that there is any money or other property held by
or for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata among the Holders of the Securities.
SECTION 7.3 Redemption of Securities.
(a) Upon the repayment or redemption, in whole or in part, of the
Debentures held by the Trust, whether at the stated maturity of the Debentures
or upon earlier redemption as provided in the Indenture, the proceeds from such
repayment or redemption shall be simultaneously applied Pro Rata (subject to
Section 7.1(b)) to redeem Securities having an aggregate liquidation amount
equal to the aggregate principal amount of the Debentures so repaid or redeemed
at the Redemption Price. Holders shall be given not less than 30 nor more than
60 days notice of such redemption in accordance with Section 7.4.
(b) On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Securities will no longer be deemed to be
outstanding and (ii) certificates representing Securities will be deemed to
represent the Debentures having an aggregate principal
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amount equal to the stated liquidation amount of, and bearing accrued and unpaid
interest equal to accrued and unpaid distributions on, such Securities until
such certificates are presented to the Sponsor or its agent for transfer or
reissuance.
SECTION 7.4 Redemption Procedures.
(a) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution Notice"),
which notice shall be irrevocable, will be given by the Trust by mail to each
Holder of Securities to be redeemed or exchanged not fewer than 30 nor more than
60 days before the date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption of the Debentures.
For purposes of the calculation of the date of redemption or exchange and the
dates on which notices are given pursuant to this Section 7.4(a), a
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder appearing in the
register of the Trust. No defect in the Redemption/Distribution Notice or in the
mailing of either thereof with respect to any Holder shall affect the validity
of the redemption or exchange proceedings with respect to any other Holder.
(b) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Preferred Securities will be redeemed
Pro Rata (subject to Section 7.1(b)) and the Preferred Securities to be redeemed
will be redeemed as described in Section 7.4(c) below. The Trust may not redeem
the Securities in part unless all accumulated and unpaid Distributions to the
date of redemption have been paid in full on all Securities then outstanding.
For all purposes of this Declaration, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities shall relate, in
the case of any Preferred Security redeemed or to be redeemed only in part, to
the portion of the aggregate liquidation amount of Preferred Securities which
has been or is to be redeemed.
(c) Subject to the Trust's fulfillment of the notice requirements
set forth in Section 7.4(a) above, if Securities are to be redeemed, then (i)
with respect to Preferred Securities represented by one or more Global
Securities, by 12:00 noon, New York City time, on the redemption date (provided
that the Debenture Issuer has paid the Property Trustee a sufficient amount of
cash in connection with the related redemption or maturity of the Debentures),
the Property Trustee will deposit irrevocably with the Depositary or its nominee
(or successor Clearing Agency or its nominee) funds sufficient to pay the
applicable Redemption Price with respect to the Preferred Securities and will
give the Depositary irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Preferred Securities and (ii) with respect to
Securities not represented by one or more Global Securities (provided that the
Debenture Issuer has paid the Property Trustee a sufficient amount of cash in
connection with the related redemption or maturity of the Debentures), the
Paying Agent will pay the relevant Redemption Price to the Holders of such
Securities by check mailed to the address of the relevant Holder appearing on
the register of the Trust on the redemption date. If any date fixed for
redemption of Securities is not a Business Day, then payment of the Redemption
Price payable on such date will be made on the next succeeding day that is a
Business Day (and without any
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interest or other payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date fixed for redemption. If payment of the Redemption Price
in respect of any Securities is improperly withheld or refused and not paid
either by the Property Trustee or by the Sponsor as guarantor pursuant to the
Guarantee, Distributions on such Securities will continue to accrue at the then
applicable rate from the original redemption date to the actual date of payment,
in which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption Price. For these purposes,
the applicable Redemption Price shall not include Distributions which are being
paid to Holders who were Holders on a relevant record date. If a
Redemption/Distribution Notice shall have been given and funds deposited or paid
as required, then immediately prior to the close of business on the date of such
deposit or payment, Distributions will cease to accrue on the Securities called
for redemption and all rights of Holders of such Securities so called for
redemption will cease, except the right of the Holders to receive the Redemption
Price, but without interest on such Redemption Price, and from and after the
date fixed for redemption, such Securities will cease to be outstanding.
Neither the Regular Trustees nor the Trust shall be required to
register or cause to be registered the transfer of any Securities that have been
called for redemption, except in the case of any Securities being redeemed in
part, any portion thereof not to be redeemed.
(d) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Debenture Issuer or its
subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
SECTION 7.5 Voting Rights of Preferred Securities.
(a) Except as provided under Section 11.1 and this Article 7 and as
otherwise required by the Business Trust Act, the Trust Indenture Act and other
applicable law, the Holders of the Preferred Securities shall have no voting
rights.
(b) Subject to the requirement of the Property Trustee obtaining a
tax opinion in certain circumstances set forth in Section 7.5(d) below, the
Holders of a Majority in Liquidation Amount of the Preferred Securities voting
separately as a class have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee, or
to direct the exercise of any trust or power conferred upon the Property Trustee
under the Declaration, including the right to direct the Property Trustee, as
Holder of the Debentures, to (i) exercise the remedies available to it under the
Indenture as a Holder of the Debentures; (ii) consent to any amendment or
modification of the Indenture or the Debentures where such consent shall be
required or (iii) waive any past default and its consequences that is waivable
under Section 513 of the Indenture; provided, however, that if an Indenture
Event of Default has occurred and is continuing, then the Holders of 25% of the
aggregate liquidation amount of the Preferred Securities may direct the Property
Trustee to declare the principal of and interest on the Debentures due and
payable; provided, further, that where a consent or action under the Indenture
would require the consent or act of the Holders of more than a majority of
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the aggregate principal amount of Debentures affected thereby, only the Holders
of the percentage of the aggregate stated liquidation amount of the Preferred
Securities which is at least equal to the percentage required under the
Indenture may direct the Property Trustee to give such consent to take such
action.
(c) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of Preferred Securities has made a written request,
such Holder of Preferred Securities may, to the extent permitted by applicable
law, institute a legal proceeding directly against the Debenture Issuer to
enforce the Property Trustee's rights under the Indenture without first
instituting any legal proceeding against the Property Trustee or any other
Person. In addition, if a Trust Enforcement Event has occurred and is continuing
and such event is attributable to the failure of the Debenture Issuer to make
any interest, principal or other required payments when due under the Indenture,
then a Holder of Preferred Securities may directly institute a Direct Action
against the Debenture Issuer on or after the respective due date specified in
the Debentures.
(d) The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of any Indenture Event of Default received from the
Debenture Issuer with respect to the Debentures. Such notice shall state that
such Indenture Event of Default also constitutes a Trust Enforcement Event.
Except with respect to directing the time, method, and place of conducting a
proceeding for a remedy, the Property Trustee shall be under no obligation to
take any of the actions described in clause 7.5(b)(i) and (ii) above unless the
Property Trustee has obtained an opinion of independent tax counsel to the
effect that the Trust will not fail to be classified as a grantor trust for
United States federal income tax purposes as a result of such action, and each
Holder will be treated as owning an undivided beneficial ownership interest in
the Debentures.
(e) In the event the consent of the Property Trustee, as the Holder
of the Debentures, is required under the Indenture with respect to any amendment
or modification of the Indenture, the Property Trustee shall request the
direction of the Holders of the Securities with respect to such amendment or
modification and shall vote with respect to such amendment or modification as
directed by not less than 66-2/3% of the aggregate liquidation amount of the
Securities voting together as a single class; provided, however, that where a
consent under the Indenture would require the consent of the Holders of more
than a 66-2/3%of the aggregate principal amount of the Debentures, the Property
Trustee may only give such consent at the direction of the Holders of at least
the same proportion in aggregate stated liquidation amount of the Securities.
The Property Trustee shall not take any such action in accordance with the
directions of the Holders of the Securities unless the Property Trustee has
obtained an opinion of independent tax counsel to the effect that the Trust will
not be classified as other than a grantor trust for United States federal income
tax purposes as a result of such action, and each Holder will be treated as
owning an undivided beneficial ownership interest in the Debentures.
(f) A waiver of an Indenture Event of Default with respect to the
Debentures will constitute a waiver of the corresponding Trust Enforcement
Event.
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(g) Any required approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of Preferred Securities
convened for such purpose, at a meeting of all of the Holders of Securities or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote to be
mailed to each Holder of record of Preferred Securities. Each such notice will
include a statement setting forth (i) the date of such meeting, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote and (iii) instructions for the delivery of
proxies.
(h) No vote or consent of the Holders of Preferred Securities shall
be required for the Trust to redeem and cancel Preferred Securities or
distribute Debentures in accordance with this Declaration and the terms of the
Securities.
(i) Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Securities that are owned at such time by the Debenture Issuer, any
Regular Trustee or any entity directly or indirectly controlled by, or under
direct or indirect common control with, the Debenture Issuer or any Regular
Trustee, shall not be entitled to vote or consent and shall, for purposes of
such vote or consent, be treated as if such Securities were not outstanding;
provided, however, that persons otherwise eligible to vote to whom the Debenture
Issuer or any of its subsidiaries have pledged Preferred Securities may vote or
consent with respect to such pledged Preferred Securities under any of the
circumstances described herein.
(j) Subject to Sections 6.6(a) and 7.5(k), Holders of the Preferred
Securities shall have no rights to appoint or remove the Trustees, who may be
appointed, removed or replaced solely by the Common Securities Holder.
(k) If an Indenture Event of Default has occurred and is continuing,
the Trustees may be removed at such time only by a Majority in Liquidation
Amount of the Preferred Securities.
SECTION 7.6 Voting Rights of Common Securities.
(a) Except as provided under Section 6.1(b), this Section 7.6 or
Section 11.1 or as otherwise required by the Business Trust Act, the Trust
Indenture Act or other applicable law or provided by the Declaration, the
Holders of the Common Securities will have no voting rights.
(b) Subject to Sections 6.6(a) and 7.5(k), the Holders of the Common
Securities shall be entitled, in accordance with Article VI of this Declaration,
to vote to appoint, remove or replace any Trustee or to increase or decrease the
number of Trustees.
(c) Subject to Section 2.6 and only after all Trust Enforcement
Events with respect to the Preferred Securities have been cured, waived, or
otherwise eliminated and subject to the requirement of the Property Trustee
obtaining a tax opinion in certain circumstances set
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forth in this paragraph (c), the Holders of a Majority in Liquidation Amount of
the Common Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee, or
direct the exercise of any trust or power conferred upon the Property Trustee
under this Declaration, including the right to direct the Property Trustee, as
Holder of the Debentures, to (i) exercise the remedies available to it under the
Indenture as a Holder of the Debentures, (ii) consent to any amendment or
modification of the Indenture or the Debentures where such consent shall be
required or (iii) waive any past default and its consequences that is waivable
under Section 513 of the Indenture; provided, however, that where a consent or
action under the Indenture would require the consent or act of the Holders of
more than a majority of the aggregate principal amount of Debentures affected
thereby, only the Holders of the percentage of the aggregate stated liquidation
amount of the Common Securities which is at least equal to the percentage
required under the Indenture may direct the Property Trustee to have such
consent or take such action. Except with respect to directing the time, method,
and place of conducting a proceeding for a remedy, the Property Trustee shall be
under no obligation to take any of the actions described in clause 7.6(c)(i) and
(ii) above unless the Property Trustee has obtained an opinion of independent
tax counsel to the effect that, as a result of such action, for United States
federal income tax purposes the Trust will not fail to be classified as a
grantor trust and each Holder will be treated as owning an undivided beneficial
ownership interest in the Debentures.
(d) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of Common Securities has made a written request, such
Holder of Common Securities may, to the extent permitted by applicable law,
directly institute a legal proceeding directly against the Debenture Issuer to
enforce the Property Trustee's rights under the Debentures without first
instituting any legal proceeding against the Property Trustee or any other
Person.
(e) A waiver of an Indenture Event of Default with respect to the
Debentures will constitute a waiver of the corresponding Trust Enforcement
Event.
(f) Any required approval or direction of Holders of Common
Securities may be given at a separate meeting of Holders of Common Securities
convened for such purpose, at a meeting of all of the Holders of Securities or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote to be mailed
to each Holder of record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting, (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are
entitled to vote and (iii) instructions for the delivery of proxies.
(g) No vote or consent of the Holders of the Common Securities will
be required for the Trust to redeem and cancel Common Securities or to
distribute Debentures in accordance with the Declaration and the terms of the
Securities.
SECTION 7.7 Paying Agent.
In the event that any Preferred Securities are not in book-entry
only form, the Trust shall maintain in the Borough of Manhattan, City of New
York, State of New York, an
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office or agency where the Preferred Securities may be presented for payment
("Paying Agent"). The Trust may appoint the paying agent and may appoint one or
more additional paying agents in such other locations as it shall determine. The
term "Paying Agent" includes any additional paying agent. The Trust may change
any Paying Agent without prior notice to the Holders. The Trust shall notify the
Property Trustee of the name and address of any Paying Agent not a party to this
Declaration. If the Trust fails to appoint or maintain another entity as Paying
Agent, the Property Trustee shall act as such. The Trust or any of its
Affiliates may act as Paying Agent. The Property Trustee shall initially act as
Paying Agent for the Securities. In the event the Property Trustee shall no
longer be the Paying Agent, the Regular Trustees shall appoint a successor
(which shall be a bank or trust company acceptable to the Debenture Issuer) to
act as Paying Agent. The Paying Agent shall be permitted to resign as Paying
Agent upon 30 days' written notice to the Property Trustee and the Debenture
Issuer.
SECTION 7.8 Listing
The Sponsor shall use its best efforts to cause the Preferred
Securities to be listed for quotation on the New York Stock Exchange.
SECTION 7.9 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. To the fullest extent permitted by law, any
transfer or purported transfer of any Security not made in accordance with this
Declaration shall be null and void.
(b) (i) Subject to this Article 7, Preferred Securities shall be
freely transferable.
(ii) The Holder of the Common Securities may not transfer the
Common Securities except (A) in compliance with a
consolidation, merger, sale, conveyance or lease of the
Sponsor in compliance with Article VIII of the Indenture
or (B) to the Sponsor or an Affiliate thereof in
compliance with applicable law, including the Securities
Act and applicable state securities and blue sky laws.
To the fullest extent permitted by law, any attempted
transfer of the Common Securities other than as set
forth in the immediately preceding sentence shall be
null and void.
(c) The Trust shall cause to be kept at the Corporate Trust Office
of the Property Trustee a register (the register maintained in such office being
herein sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Trust shall provide for the
registration of Preferred Securities and of transfers of Preferred Securities.
The Property Trustee is hereby appointed "Security Registrar" for the purpose of
registering Preferred Securities and transfers of Preferred Securities as herein
provided.
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(d) Upon surrender for registration of transfer of any Security at
an office or agency of the Trust designated for such purpose, the Trust shall
execute, and the Property Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of any
authorized denominations and of a like aggregate principal amount.
(e) At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Trust shall execute, and in the case of Preferred Securities the Property
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
(f) Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Trust or the Property
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Trust and the Security Registrar duly executed, by
the Holder thereof or his attorney duly authorized in writing.
(g) No service charge shall be made for any registration of transfer
or exchange of Securities, but the Trust 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.
(h) If the Securities are to be redeemed in part, the Trust shall
not be required (A) to issue, register the transfer of or exchange any
Securities during a period beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of any such Securities selected
for redemption under Section 7.4 and ending at the close of business on the day
of such mailing, or (B) to register the transfer or exchange of any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 7.10 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such security
or indemnity as may be required by them to keep each of the Trustees, the
Sponsor and the Trust harmless,
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like denomination. In connection
with the issuance of any new Certificate under this Section 7.10, the Regular
Trustees may require the payment of a sum sufficient to cover any tax or other
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governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the relevant Securities, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 7.11 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate
shall be registered on the register of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
SECTION 7.12 Global Securities.
The Preferred Securities may be issued in the form of one or more
Global Securities. If the Preferred Securities are to be issued in the form of
one or more Global Securities, then a Regular Trustee on behalf of the Trust
shall execute and the Property Trustee shall authenticate and deliver one or
more Global Securities that (i) shall represent and shall be denominated in an
amount equal to the aggregate liquidation amount of all of the Preferred
Securities to be issued in the form of Global Securities and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Global Security
or the nominee of such Depositary, and (iii) shall be delivered by the Property
Trustee to such Depositary or pursuant to such Depositary's instructions. Global
Securities shall bear a legend substantially to the following effect:
"This Preferred Security is a Global Security within the
meaning of the Declaration hereinafter referred to and is registered in
the name of The Depository Trust Company, a New York corporation (the
"Depositary"), or a nominee of the Depositary. This Preferred Security is
exchangeable for Preferred Securities registered in the name of a person
other than the Depositary or its nominee only in the limited circumstances
described in the Declaration and no transfer of this Preferred Security
(other than a transfer of this Preferred Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this Preferred Security Certificate is presented by an
authorized representative of the Depositary to First Security Capital __
or its agent for registration of transfer, exchange or payment, and any
Preferred Security Certificate issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of the
Depositary (and any payment hereon is made to Cede & Co. or to such other
entity as is requested by an authorized representative of the Depositary),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS
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WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein."
Preferred Securities not represented by a Global Security issued in
exchange for all or a part of a Global Security pursuant to this Section 7.11
shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Property Trustee. Upon execution and
authentication, the Property Trustee shall deliver such Preferred Securities not
represented by a Global Security to the Persons in whose names such definitive
Preferred Securities are so registered.
At such time as all interests in Global Securities have been
redeemed, repurchased or cancelled, such Global Securities shall be, upon
receipt thereof, cancelled by the Property Trustee in accordance with standing
procedures of the Depositary. At any time prior to such cancellation, if any
interest in Global Securities is exchanged for Preferred Securities not
represented by a Global Security, redeemed, cancelled or transferred to a
transferee who receives Preferred Securities not represented by a Global
Security therefor or any Preferred Security not represented by a Global Security
is exchanged or transferred for part of Global Securities, the principal amount
of such Global Securities shall, in accordance with the standing procedures of
the Depositary, be reduced or increased, as the case may be, and an endorsement
shall be made on such Global Securities by the Property Trustee to reflect such
reduction or increase.
The Trust and the Property Trustee may for all purposes, including
the making of payments due on the Preferred Securities, deal with the Depositary
as the authorized representative of the Holders for the purposes of exercising
the rights of Holders hereunder. The rights of the owner of any beneficial
interest in a Global Security shall be limited to those established by law and
agreements between such owners and depository participants provided, that no
such agreement shall give any rights to any Person against the Trust or the
Property Trustee without the written consent of the parties so affected.
Multiple requests and directions from and votes of the Depositary as holder of
Preferred Securities in global form with respect to any particular matter shall
not be deemed inconsistent to the extent they do not represent an amount of
Preferred Securities in excess of those held in the name of the Depositary or
its nominee.
If at any time the Depositary for any Preferred Securities
represented by one or more Global Securities notifies the Trust that it is
unwilling or unable to continue as Depositary for such Preferred Securities or
if at any time the Depositary for such Preferred Securities shall no longer be
eligible under this Section 7.11, the Trust shall appoint a successor Depositary
with respect to such Preferred Securities. If a successor Depositary for such
Preferred Securities is not appointed by the Trust within 90 days after the
Trust receives such notice or becomes aware of such ineligibility, the Trust's
election that such Preferred Securities be represented by one or more Global
Securities shall no longer be effective and the Trust shall execute, and the
Property Trustee will authenticate and deliver, Preferred Securities in
definitive registered form, in any authorized denominations, in an aggregate
liquidation amount equal to the principal amount of the Global Security or
Preferred Securities representing such Preferred Securities in exchange for such
Global Security or Preferred Securities.
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The Trust may at any time and in its sole discretion determine that
the Preferred Securities issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Preferred Securities. In
such event the Trust shall execute, and the Property Trustee, shall authenticate
and deliver, Preferred Securities in definitive registered form, in any
authorized denominations, in an aggregate liquidation amount equal to the
principal amount of the Global Security or Preferred Securities representing
such Preferred Securities, in exchange for such Global Security or Preferred
Securities.
Notwithstanding any other provisions of this Declaration (other than
the provisions set forth in Section 7.9), Global Securities may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
Interests of beneficial owners in a Global Security may be
transferred or exchanged for Preferred Securities not represented by a Global
Security and Preferred Securities not represented by a Global Security may be
transferred or exchange for Global Securities in accordance with rules of the
Depositary and the provisions of Section 7.9.
SECTION 7.13 Over-Allotment Option.
(a) The Regular Trustees, on behalf of the Trust, and the Sponsor may
grant to the underwriters or initial purchasers who are underwriting or
purchasing, as the case may be, any series of Preferred Securities, an option
(the "Option") to purchase an additional liquidation amount of such series of
Preferred Securities on the terms and conditions specified in the underwriting
agreement or purchase agreement, as the case may be, relating to such Preferred
Securities; provided, however, the Option may only be granted if the following
conditions are satisfied:
(i) the Option, if exercised, may not result in the issue and sale of an
aggregate liquidation amount of Preferred Securities greater than
that registered by the Sponsor and the Trust on the applicable
registration statement or registration statements (including by a
registration statement filed under Rule 462(b) under the Securities
Act, if any), as the case may be, with the Commission under the
Securities Act;
(ii) the Option must result, if exercised, in the issuance and sale of
Preferred Securities to such underwriters or initial purchasers, as
the case may be, and the issuance and sale of Common Securities to
the Sponsor on a Pro Rata basis and not in contravention of any
other provision of this Agreement or the Business Trust Act,
consistent with Section 5.1; and
(iii) the Preferred Securities and the Common Securities issued and sold
subject to the exercise of the Option, if any, must be of the same
series and must bear the same CUSIP numbers as the series of
Preferred Securities and the Common Securities,
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respectively, which were initially issued and sold by the Trust and
the Sponsor, respectively.
(b) With respect to any issuance of Preferred Securities and Common
Securities following the exercise of the Option,
(i) the designation the "__% Preferred Securities" and, for all purposes
under this Declaration, the defined terms the "Preferred Securities"
shall mean both the Preferred Securities issued initially hereunder
and any Preferred Securities issued pursuant to the exercise of the
Option; and
(ii) the designation the "__% Common Securities" and, for all purposes
under this Declaration, the defined term the "Common Securities"
shall mean both the Common Securities issued initially hereunder and
any Common Securities issued pursuant to the requirement of Section
7.13(a)(ii) regarding the additional issuance of Common Securities
on a Pro Rata basis if the Option is exercised.
(c) If the Option set forth in Section 7.13(a) is exercised on a date
other than the initial Closing Date, then the parties to the Declaration shall
cause there to occur a second closing for the consummation of the sale of the
Preferred Securities and Common Securities under substantially the same
conditions that applied to the initial closing of the sale of such securities,
including the following:
(i) the execution and delivery of a second Preferred Security
Certificate, or such additional Preferred Security Certificates, as
appropriate, which is, or are, as the case may be, substantially
identical in all respects to the Preferred Security Certificate
issued initially; and
(ii) the execution and delivery of a second Common Security Certificate,
or such additional Common Security Certificate, as appropriate,
which is, or are, as the case may be, substantially identical in all
relevant respects to the Common Security Certificate issued
initially.
ARTICLE 8
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust.
(a) The Trust shall dissolve upon the earliest of:
(i) the bankruptcy of the Holder of the Common Securities or
the Sponsor;
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(ii) the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor; the dissolution
of the Trust after obtaining the consent of the Holders
of at least a Majority in Liquidation Amount of the
Securities to dissolve the Trust; or the revocation of
the Sponsor's charter and the expiration of 90 days
after the date of revocation without a reinstatement
thereof;
(iii) the entry of a decree of judicial dissolution of the
Sponsor or the Trust;
(iv) the time when all of the Securities shall have been
called for redemption and the amounts then due shall
have been paid to the Holders in accordance with the
terms of the Securities;
(v) at the Sponsor's election by notice and direction to the
Property Trustee to distribute the Debentures to the
Holders of the Securities in exchange for all of the
Securities, subject to the receipt of any necessary
approvals by the Federal Reserve that may then be
required under the applicable capital guidelines or
policies of the Federal Reserve; provided that the
Sponsor will be required to obtain an opinion of an
independent counsel that the distribution of the
Debentures will not be taxable to the Holders of the
Preferred Securities for United States federal income
tax purposes; or
(vi) the time when all of the Regular Trustees and the
Sponsor shall have consented to dissolution of the Trust
provided such action is taken before the issuance of any
Securities.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and upon completion of the winding up and
liquidation of the Trust, the Trustees shall terminate the Trust by filing a
certificate of cancellation with the Secretary of State of the State of
Delaware.
(c) The provisions of Section 4.2 and Article 9 shall survive the
termination of the Trust.
SECTION 8.2 Liquidation Distribution Upon Dissolution of the Trust.
(a) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Trust (each a "Liquidation"), the Holders of
the Securities on the date of the Liquidation will be entitled to receive, out
of the assets of the Trust available for distribution to Holders of Securities
after satisfaction of the Trusts' liabilities to creditors, if any,
distributions in cash or other immediately available funds in an amount equal to
the aggregate of the stated liquidation amount of $__ per Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"), unless, in connection with
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51
such Liquidation, Debentures in an aggregate stated principal amount equal to
the aggregate stated liquidation amount of, with an interest rate identical to
the distribution rate of, and accrued and unpaid interest equal to accumulated
and unpaid Distributions on, such Securities shall be distributed on a Pro Rata
basis to the Holders of the Securities in exchange for such Securities.
(b) If, upon any such Liquidation, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets available to pay
in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis. The
Holders of the Common Securities will be entitled to receive distributions upon
any such Liquidation Pro Rata with the Holders of the Preferred Securities
except that if an Indenture Event of Default has occurred and is continuing, the
Preferred Securities shall have a preference over the Common Securities with
regard to such distributions.
ARTICLE 9
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS
SECTION 9.1 Liability.
(a) Except as expressly set forth in this Declaration, the Guarantee
and the terms of the Securities, the Sponsor:
(i) shall not be personally liable for the return of any
portion of the capital contributions (or any return
thereon) of the Holders of the Securities which shall be
made solely from assets of the Trust; and
(ii) shall not be required to pay to the Trust or to any
Holder of Securities any deficit upon dissolution of the
Trust or otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, the
Holder of the Common Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware; provided,
however, the Holders of the Common Securities shall be liable for all of the
debts and obligations of the Trust (other than with respect to the Securities)
to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 9.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred
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52
by reason of any act or omission performed or omitted by such Indemnified Person
in good faith on behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Declaration or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason of
such Indemnified Person's negligence or willful misconduct with respect to such
acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
SECTION 9.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to another Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
any Covered Person and any Indemnified Person; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
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53
(c) Whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires,
including its own interests, and shall have no duty or
obligation to give any consideration to any interest of
or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express
standard and shall not be subject to any other or
different standard imposed by this Declaration or by
applicable law.
SECTION 9.4 Indemnification.
(a)(i) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Debenture Issuer Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by reason
of the fact that he is or was a Debenture Issuer Indemnified Person against
expenses (including attorney fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Debenture Issuer Indemnified Person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full extent
permitted by law, any Debenture Issuer Indemnified
Person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action
or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is
or was a Debenture Issuer Indemnified Person against
expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted
in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Trust
and except that no such indemnification shall be made in
respect of any claim, issue or matter as to which such
Debenture Issuer Indemnified Person shall have been
adjudged to be liable to the Trust unless and only to
the extent that the Court of Chancery of Delaware or
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54
the court in which such action or suit was brought shall
determine upon application that, despite the
adjudication of liability but in view of all the
circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which
such Court of Chancery or such other court shall deem
proper.
(iii) Any indemnification under paragraphs (i) and (ii) of
this Section 9.4(a) (unless ordered by a court) shall be
made by the Debenture Issuer only as authorized in the
specific case upon a determination that indemnification
of the Debenture Issuer Indemnified Person is proper in
the circumstances because he has met the applicable
standard of conduct set forth in paragraphs (i) and
(ii). Such determination shall be made (1) by the
Regular Trustees by a majority vote of a quorum
consisting of such Regular Trustees who were not parties
to such action, suit or proceeding, (2) if such a quorum
is not obtainable, or, even if obtainable, if a quorum
of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion, or (3)
by the Common Security Holder of the Trust.
(iv) Expenses (including attorneys' fees) incurred by a
Debenture Issuer Indemnified Person in defending a
civil, criminal, administrative or investigative action,
suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 9.4(a) shall be paid by the
Debenture Issuer in advance of the final disposition of
such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Debenture Issuer
Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be
indemnified by the Debenture Issuer as authorized in
this Section 9.4(a). Notwithstanding the foregoing, no
advance shall be made by the Debenture Issuer if a
determination is reasonably and promptly made (i) by the
Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is
not obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion or (iii)
the Common Security Holder of the Trust, that, based
upon the facts known to the Regular Trustees, counsel or
the Common Security Holder at the time such
determination is made, such Debenture Issuer Indemnified
Person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the
best interests of the Trust, or, with respect to any
criminal proceeding, that such Debenture Issuer
Indemnified Person believed or had reasonable cause to
believe his conduct was unlawful. In no event shall any
advance be made in instances where the Regular Trustees,
independent legal counsel or Common Security Holder
reasonably determine that such person deliberately
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breached his duty to the Trust or its Common or
Preferred Security Holders.
(v) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other
paragraphs of this Section 9.4(a) shall not be
deemed exclusive of any other rights to which those
seeking indemnification and advancement of expenses
may be entitled under any agreement, vote of
stockholders or disinterested directors of the
Debenture Issuer or Preferred Security Holders of
the Trust or otherwise, both as to action in his
official capacity and as to action in another
capacity while holding such office. All rights to
indemnification under this Section 9.4(a) shall be
deemed to be provided by a contract between the
Debenture Issuer and each Debenture Issuer
Indemnified Person who serves in such capacity at
any time while this Section 9.4(a) is in effect. Any
repeal or modification of this Section 9.4(a) shall
not affect any rights or obligations then existing.
(vi) The Debenture Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or
was a Debenture Issuer Indemnified Person against
any liability asserted against him and incurred by
him in any such capacity, or arising out of his
status as such, whether or not the Debenture Issuer
would have the power to indemnify him against such
liability under the provisions of this Section
9.4(a).
(vii) For purposes of this Section 9.4(a), references to
"the Trust" shall include, in addition to the
resulting or surviving entity, any constituent
entity (including any constituent of a constituent)
absorbed in a consolidation or merger, so that any
person who is or was a director, trustee, officer or
employee of such constituent entity, or is or was
serving at the request of such constituent entity as
a director, trustee, officer, employee or agent of
another entity, shall stand in the same position
under the provisions of this Section 9.4(a) with
respect to the resulting or surviving entity as he
would have with respect to such constituent entity
if its separate existence had continued.
(viii) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section
9.4(a) shall, unless otherwise provided when
authorized or ratified, continue as to a person who
has ceased to be a Debenture Issuer Indemnified
Person and shall inure to the benefit of the heirs,
executors and administrators of such a person. The
obligation to indemnify as set forth in this Section
9.4(a) shall survive the resignation or removal of
the
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Delaware Trustee or the Property Trustee or the
termination of this Declaration.
(b) The Debenture Issuer agrees to indemnify the (i) Property
Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the Property Trustee
or the Delaware Trustee, and (iv) any officers, directors, shareholders,
members, partners, employees, representatives, custodians, nominees or agents of
the Property Trustee or the Delaware Trustee (each of the Persons in (i) through
(iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold
each Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 9.4(b) shall
survive the resignation and removal of the Delaware Trustee or the Property
Trustee and the satisfaction and discharge of this Declaration. In addition, the
Debenture Issuer has agreed in the Indenture to pay the fees and expenses of the
Delaware Trustee and the Property Trustee.
SECTION 9.5 Outside Businesses.
Subject to the provisions of Section 6.3, any Covered Person, the
Sponsor, the Delaware Trustee and the Property Trustee may engage in or possess
an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the activities of the
Trust, and the Trust and the Holders of Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the activities of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee or the Property
Trustee shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any Covered Person, the
Sponsor, the Delaware Trustee and the Property Trustee shall have the right to
take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE 10
ACCOUNTING
SECTION 10.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
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SECTION 10.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each transaction
of the Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States federal income tax purposes. The books of account and the records
of the Trust shall be examined by and reported upon as of the end of each Fiscal
Year of the Trust by a firm of independent certified public accountants selected
by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and delivered to
each of the Holders of Securities, within 90 days after the end of each Fiscal
Year of the Trust, annual financial statements of the Trust, including a balance
sheet of the Trust as of the end of such Fiscal Year, and the related statements
of income or loss.
(c) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, an annual United States federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed by
the Regular Trustees on behalf of the Trust with any state or local taxing
authority.
SECTION 10.3 Banking.
The Trust shall maintain one or more bank accounts in the name and
for the sole benefit of the Trust; provided, however, that all payments of funds
in respect of the Debentures held by the Property Trustee shall be made directly
to the Property Account and no other funds of the Trust shall be deposited in
the Property Account. The sole signatories for such accounts shall be designated
by the Regular Trustees; provided, however, that the Property Trustee shall
designate the signatories for the Property Account.
SECTION 10.4 Withholding.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required forms with
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applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE 11
AMENDMENTS AND MEETINGS
SECTION 11.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by the Sponsor and (i) the Regular
Trustees (or, if there are more than two Regular Trustees, a majority of the
Regular Trustees) and (ii) the Property Trustee if the amendment affects the
rights, powers, duties, obligations or immunities of the Property Trustee; and
(iii) the Delaware Trustee if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee.
(b) No amendment shall be made, and any such purported amendment
shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers'
Certificate from each of the Trust and the Sponsor that
such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or
immunities of the Property Trustee, the Property Trustee
shall have first received:
a. an Officers' Certificate from each of the Trust
and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Declaration
(including the terms of the Securities) and that
all conditions precedent to the execution and
delivery of such amendment have been satisfied;
and
b. an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is
permitted by, and
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59
conforms to, the terms of this Declaration
(including the terms of the Securities) and that
all conditions precedent to the execution and
delivery of such amendment have been satisfied;
and
(iii) to the extent the result of such amendment would be to:
a. cause the Trust to be classified other than as a
grantor trust for United States federal income tax
purposes;
b. reduce or otherwise adversely affect the powers of
the Property Trustee in contravention of the Trust
Indenture Act; or
c. cause the Trust to be deemed to be an Investment
Company required to be registered under the
Investment Company Act.
(c) If the Trust has issued any Securities that remain outstanding:
(i) any amendment that would (a) change the amount or timing
of any distribution of the Securities or otherwise
adversely affect the amount of any distribution required
to be made in respect of the Securities as of a
specified date or (b) restrict the right of a Holder of
Securities to institute suit for the enforcement of any
such payment on or after such date, will entitle the
Holders of such Securities, voting together as a single
class, to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with
the approval of each of the Holders of the Securities
affected thereby; and
(ii) any amendment that would (a) adversely affect the
powers, preferences or special rights of the Securities,
whether by way of amendment to this Declaration or
otherwise or (b) result in the dissolution, winding-up
or termination of the Trust other than pursuant to the
terms of this Declaration, will entitle the holders of
the Securities voting together as a single class to vote
on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval
of 66 2/3% of the Securities affected thereby; provided
that, if any amendment or proposal referred to in clause
(a) above would adversely affect only the Preferred
Securities or the Common Securities, then only the
affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal.
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(d) This Section 11.1 shall not be amended without the consent of
all of the Holders of the Securities.
(e) Article 4 shall not be amended without the consent of the
Holders of a Majority in Liquidation Amount of the Common Securities.
(f) The rights of the Holders of the Common Securities under Article
5 to increase or decrease the number of, and appoint and remove Trustees shall
not be amended without the consent of the Holders of a Majority in Liquidation
Amount of the Common Securities.
(g) Notwithstanding Section 11.1(c), this Declaration may be amended
without the consent of the Holders of the Securities, if such amendment does not
adversely affect in any material respect the rights of the holders of the
Securities, to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration
that may be defective or inconsistent with any other
provision of this Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) to conform to any change in Rule 3a-5 of the Investment
Company Act or written change in interpretation or
application of Rule 3a-5 of the Investment Company Act
by any legislative body, court, government agency or
regulatory authority; or
(v) to modify, eliminate and add to any provision of this
Declaration to ensure that the Trust will be classified
as a grantor trust for United States federal income tax
purposes at all times that any Securities are
outstanding or to ensure that the Trust will not be
required to register as an Investment Company under the
Investment Company Act.
SECTION 11.2 Meetings of the Holders of Securities; Action by
Written Consent.
(a) Meetings of the Holders of any class of Securities may be called
at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms of
the Securities or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Regular Trustees shall call a
meeting of the Holders of such class if directed to do so by the Holders of at
least 10% in Liquidation Amount of such class of Securities. Such direction
shall be given by delivering to the Regular Trustees one or more calls in a
writing stating that the signing Holders of Securities wish to call a meeting
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and indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call a
meeting and only those Securities specified shall be counted for purposes of
determining whether the required percentage set forth in the second sentence of
this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at
least 7 days and not more than 60 days before the date
of such meeting. Whenever a vote, consent or approval of
the Holders of Securities is permitted or required under
this Declaration or the rules of any stock exchange on
which the Preferred Securities are listed or admitted
for trading, such vote, consent or approval may be given
at a meeting of the Holders of Securities. Any action
that may be taken at a meeting of the Holders of
Securities may be taken without a meeting and without
prior notice if a consent in writing setting forth the
action so taken is signed by the Holders of Securities
owning not less than the minimum amount of Securities in
liquidation amount that would be necessary to authorize
or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present
and voting. Prompt notice of the taking of action
without a meeting shall be given to the Holders of
Securities entitled to vote who have not consented in
writing. The Regular Trustees may specify that any
written ballot submitted to the Security Holders for the
purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the
Regular Trustees;
(ii) each Holder of a Security may authorize any Person to
act for it by proxy on all matters in which a Holder of
Securities is entitled to participate, including waiving
notice of any meeting, or voting or participating at a
meeting. No proxy shall be valid after the expiration of
11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at
the pleasure of the Holder of Securities executing such
proxy. Except as otherwise provided herein, all matters
relating to the giving, voting or validity of proxies
shall be governed by the General Corporation Law of the
State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a
Delaware corporation and the Holders of the Securities
were stockholders of a Delaware corporation;
<PAGE> 159
62
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other
Person that the Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the
terms of the Securities, the Trust Indenture Act or the
listing rules of any stock exchange on which the
Preferred Securities are then listed for trading,
otherwise provides, the Regular Trustees, in their sole
discretion, shall establish all other provisions
relating to meetings of Holders of Securities, including
notice of the time, place or purpose of any meeting at
which any matter is to be voted on by any Holders of
Securities, waiver of any such notice, action by consent
without a meeting, the establishment of a record date,
quorum requirements, voting in person or by proxy or any
other matter with respect to the exercise of any such
right to vote.
ARTICLE 12
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 12.1 Representations and Warranties of the Property Trustee.
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
(a) the Property Trustee is a national banking association, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, this
Declaration;
(b) the Property Trustee satisfies the requirements set forth in
Section 6.3(a);
(c) the execution, delivery and performance by the Property Trustee
of this Declaration has been duly authorized by all necessary corporate action
on the part of the Property Trustee. This Declaration has been duly executed and
delivered by the Property Trustee, and it constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law);
<PAGE> 160
63
(d) the execution, delivery and performance of this Declaration by
the Property Trustee does not conflict with or constitute a breach of the
articles of association or incorporation, as the case may be, or the by-laws (or
other similar organizational documents) of the Property Trustee; and
(e) no consent, approval or authorization of, or registration with
or notice to, any State or federal banking authority is required for the
execution, delivery or performance by the Property Trustee of this Declaration.
SECTION 12.2 Representations and Warranties of the Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration, and
each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) the Delaware Trustee satisfies the requirements set forth in
Section 6.2, satisfies Trust Section 3807 of the Business Trust Act and has the
power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration and, if it is not a natural
person, is duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Declaration. This
Declaration under Delaware law constitutes a legal, valid and binding obligation
of the Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or at law);
and
(c) no consent, approval or authorization of, or registration with
or notice to, any State or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Declaration.
ARTICLE 13
MISCELLANEOUS
SECTION 13.1 Notices.
All notices provided for in this Declaration shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied
or mailed by registered or certified mail, as follows:
<PAGE> 161
64
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Property Trustee, the Delaware Trustee and the Holders of
the Securities):
c/o First Security Corporation
79 South Main Street
Salt Lake City, Utah 84111
Attention: Chief Financial Officer
Facsimile No: (801) 359-6928
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as the Delaware Trustee may give notice of to
the Regular Trustees, the Property Trustee and the Holders of the Securities):
First Chicago Delaware Inc.
300 King Street
Wilmington, Delaware 19801
Attention: Michael J. Majchrzak
(c) if given to the Property Trustee, at its Corporate Trust Office
(or such other address as the Property Trustee may give notice of to the Regular
Trustees, the Delaware Trustee and the Holders of the Securities).
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice of to the Property Trustee, the Delaware
Trustee and the Trust):
(e) if given to any other Holder, at the address set forth on the
register of the Trust.
All such notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed or mailed by first class mail, postage prepaid
except that if a notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was given, such notice
or other document shall be deemed to have been delivered on the date of such
refusal or inability to deliver.
SECTION 13.2 Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of
Delaware.
SECTION 13.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor trust. The
provisions of this Declaration shall be interpreted in a manner consistent with
such classification.
<PAGE> 162
65
SECTION 13.4 Headings.
Headings contained in this Declaration are inserted for convenience
of reference only and do not affect the interpretation of this Declaration or
any provision hereof.
SECTION 13.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 13.6 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 13.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
[The rest of this page has been left blank intentionally;
the signature page follows.]
<PAGE> 163
66
IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
FIRST SECURITY CORPORATION,
as Sponsor, as Common Securities Holder
and as Debenture Issuer
By:
--------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By:
--------------------------------------
Name:
Title:
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By:
--------------------------------------
Name:
Title:
BRAD D. HARDY, as Regular Trustee
By:
--------------------------------------
<PAGE> 164
67
SCOTT C. ULBRICH, as Regular Trustee
By:
--------------------------------------
DAVID R. WILSON, as Regular Trustee
By:
--------------------------------------
<PAGE> 165
EXHIBIT A
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL PREFERRED SECURITY,
INSERT THE FOLLOWING: This Preferred Security is a Global Preferred Security
within the meaning of the Declaration hereinafter referred to and is registered
in the name of The Depository Trust Company, a New York corporation (the
"Depositary"), or a nominee of the Depositary. This Preferred Security is
exchangeable for Preferred Securities registered in the name of a person other
than the Depositary or its nominee only in the limited circumstances described
in the Declaration and no transfer of this Preferred 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 limited circumstances.
Unless this Preferred Security Certificate is presented by an
authorized representative of the Depositary to the issuer or its agent for
registration of transfer, exchange or payment, and any Preferred Security
Certificate issued is registered in the name of Cede & Co. or such other name as
registered by an authorized representative of the Depositary (and any payment
hereon is made to Cede & Co. or to such other entity as is requested by an
authorized representative of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.]
Certificate No. Number of Preferred Securities:
------------ -----------
CUSIP No.
------------------
Certificate Evidencing __% Preferred Securities
of
First Security Capital __
___% Preferred Securities
(liquidation amount $__ per Preferred Security)
Fully and Unconditionally
Guaranteed by First Security Corporation
FIRST SECURITY CAPITAL __, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede &
Co. (the "Holder") is the registered owner of ___________ preferred securities
of the Trust representing undivided beneficial ownership interests in the assets
of the Trust designated the "__% Preferred Security" (liquidation amount $__ per
Preferred Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the register of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer as provided in the Declaration (as defined below). The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Preferred Securities represented hereby are issued and shall in all respects
be subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust, dated as of _____________ ___, ____, as the same may be amended from
time to time (the "Declaration"), by and among FIRST SECURITY CORPORATION, BRAD
D. HARDY,
<PAGE> 166
2
SCOTT C. ULBRICH, and DAVID R. WILSON, as Regular Trustees, THE FIRST NATIONAL
BANK OF CHICAGO, as Property Trustee, and FIRST CHICAGO DELAWARE INC., as
Delaware Trustee and the Holders. Capitalized terms used herein but not defined
shall have the meaning given them in the Declaration. The Holder is entitled to
the benefits of the Guarantee to the extent described therein. The Sponsor will
provide a copy of the Declaration, the Guarantee and the Indenture to a Holder
without charge upon written request to the Sponsor at its principal place of
business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Preferred Securities
as evidence of undivided indirect beneficial ownership interests in the
Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this ___
day of ___________, ____.
FIRST SECURITY CAPITAL __
By:
-----------------------------------
Name:
Title: Regular Trustee
This is one of the Preferred Securities referred to in the
within-mentioned Declaration.
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By:
-----------------------------------
Authorized Officer
<PAGE> 167
EXHIBIT B
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO THE
CONDITIONS SET FORTH IN THE DECLARATION
REFERRED TO BELOW.
Certificate No. Number of Common Securities:
------------- ---------
Certificate Evidencing Common Securities
of
First Security Capital __
___% Common Securities
(liquidation amount $__ per Common Security)
FIRST SECURITY CAPITAL __, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that FIRST
SECURITY CORPORATION (the "Holder") is the registered owner of common securities
of the Trust representing an undivided beneficial ownership interest in the
assets of the Trust designated the "_____% Common Securities" (liquidation
amount $__ per Common Security) (the "Common Securities"). The Common Securities
are not transferable and any attempted transfer thereof shall be void except as
permitted by applicable law and by Section 7.9(b)(ii) of the Declaration (as
defined below). The designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Trust, dated as of __________ ___, ____ (as
the same may be amended from time to time, the "Declaration"), by and among
First Security Corporation, as Sponsor, BRAD D. HARDY, SCOTT C. ULBRICH and
DAVID R. WILSON, as Regular Trustees, THE FIRST NATIONAL BANK OF CHICAGO, as
Property Trustee, and FIRST CHICAGO DELAWARE INC., as Delaware Trustee, and the
Holders. The Holder is entitled to the benefits of the Guarantee to the extent
described therein. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Sponsor will provide a copy of the
Declaration, the Guarantee and the Indenture to the Holder without charge upon
written request to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of an undivided indirect beneficial ownership interest in the
Debentures.
<PAGE> 168
2
IN WITNESS WHEREOF, the Trust has executed this certificate this
____ day of _________, ____.
FIRST SECURITY CAPITAL __
By:
-----------------------------------
Name:
Title: Regular Trustee
<PAGE> 1
EXHIBIT 4(b)
================================================================================
FORM OF
GUARANTEE AGREEMENT
Dated as of __________, ____
By and Between
FIRST SECURITY CORPORATION,
as Guarantor
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
==============================================================================
<PAGE> 2
CROSS REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of Trust Section of
Indenture Act of Guarantee
1939, as amended Agreement
- ---------------- ---------
<S> <C>
310(a)..................................................................4.1(a)
310(b).............................................................2.8; 4.1(c)
310(c)............................................................Inapplicable
311(a)..................................................................2.2(b)
311(b)..................................................................2.2(b)
311(c)............................................................Inapplicable
312(a).............................................................2.2(a); 2.9
312(b).............................................................2.2(b); 2.9
312(c).....................................................................2.9
313(a).....................................................................2.3
313(b).....................................................................2.3
313(c).....................................................................2.3
313(d).....................................................................2.3
314(a).....................................................................2.4
314(b)............................................................Inapplicable
314(c).....................................................................2.5
314(d)............................................................Inapplicable
314(e).....................................................................2.5
314(f)............................................................Inapplicable
315(a)..........................................................3.1(d); 3.2(a)
315(b)..................................................................2.7(a)
315(c)..................................................................3.1(c)
315(d)..................................................................3.1(d)
316(a).............................................................2.6; 5.4(a)
316(b).................................................................... 5.3
316(c)........................................................... Inapplicable
317(a)....................................................................2.10
317(b)............................................................Inapplicable
318(a)..................................................................2.1(b)
</TABLE>
- --------
* This Cross-Reference Table does not constitute part of the Agreement and
shall not have any bearing upon the interpretation of any of its terms or
provisions.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 1
INTERPRETATION AND DEFINITIONS.......................................................1
SECTION 1.1 Interpretation and Definitions..........................................1
ARTICLE 2
TRUST INDENTURE ACT..................................................................5
SECTION 2.1 Trust Indenture Act; Application........................................5
SECTION 2.2 Lists of Holders of Securities..........................................5
SECTION 2.3 Reports by Guarantee Trustee............................................5
SECTION 2.4 Periodic Reports to Guarantee Trustee...................................5
SECTION 2.5 Evidence of Compliance with Conditions Precedent........................6
SECTION 2.6 Guarantee Event of Default; Waiver......................................6
SECTION 2.7 Guarantee Event of Default; Notice......................................6
SECTION 2.8 Conflicting Interests...................................................6
SECTION 2.9 Disclosure of Information...............................................6
SECTION 2.10 Guarantee Trustee May File Proofs of Claim..............................7
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE....................................................................7
SECTION 3.1 Powers and Duties of Guarantee Trustee..................................7
SECTION 3.2 Certain Rights of Guarantee Trustee.....................................9
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee..................10
ARTICLE 4
GUARANTEE TRUSTEE...................................................................10
SECTION 4.1 Guarantee Trustee; Eligibility.........................................11
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustee..............11
ARTICLE 5
GUARANTEE...........................................................................12
SECTION 5.1 Guarantee..............................................................12
SECTION 5.2 Waiver of Notice and Demand............................................12
SECTION 5.3 Obligations Not Affected...............................................13
SECTION 5.4 Rights of Holders......................................................14
SECTION 5.5 Guarantee of Payment...................................................14
SECTION 5.6 Subrogation............................................................14
</TABLE>
-i-
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 5.7 Independent Obligations................................................14
ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION...........................................15
SECTION 6.1 Limitation of Transactions.............................................15
SECTION 6.2 Ranking................................................................15
SECTION 6.3 Subordination of Common Securities.....................................15
ARTICLE 7
TERMINATION.........................................................................16
SECTION 7.1 Termination............................................................16
ARTICLE 8
INDEMNIFICATION.....................................................................16
SECTION 8.1 Exculpation............................................................16
SECTION 8.2 Indemnification........................................................16
ARTICLE 9
MISCELLANEOUS.......................................................................17
SECTION 9.1 Successors and Assigns.................................................17
SECTION 9.2 Amendments.............................................................17
SECTION 9.3 Notices................................................................17
SECTION 9.4 Benefit................................................................18
SECTION 9.5 Governing Law..........................................................18
</TABLE>
-ii-
<PAGE> 5
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Guarantee"), dated as of _______,
____, is executed and delivered by FIRST SECURITY CORPORATION, a Delaware
corporation (the "Guarantor"), and THE FIRST NATIONAL BANK OF CHICAGO, a
national banking association, as trustee (the "Guarantee Trustee"), for the
benefit of the Holders (as defined herein) from time to time of the Securities
(as defined herein) of FIRST SECURITY CAPITAL ___, a Delaware statutory business
trust (the "Trust").
RECITALS
WHEREAS, pursuant to the Declaration (as defined herein), the Trust
is issuing on the date hereof $___,___,___ aggregate liquidation amount of
preferred securities, having a liquidation amount of $__ per security and
designated the "____% Preferred Securities" [or insert other designation] of the
Trust (the "Preferred Securities") and $_________ aggregate liquidation amount
of common securities, having a liquidation amount of $__ per security and
designated the "____% Common Securities" of the Trust (the "Common Securities"
and, together with the Preferred Securities, the "Initial Securities");
WHEREAS, pursuant to the Declaration, the Trust and First Security
Corporation, as Sponsor, have granted an Option (as defined in Section 7.13(a)
of the Declaration) to certain underwriters or initial purchasers, as the case
may be, and such Option may be exercised on or within [30] days after the
initial Closing Date (as defined in the Declaration) such that an additional
$_________ aggregate liquidation amount of Preferred Securities (the "Option
Preferred Securities") and an additional $__________ aggregate liquidation
amount of Capital Securities (together with the Initial Securities and the
Option Preferred Securities, the "Securities") may be issued and sold pursuant
to Sections 7.13(a) and (b) of the Declaration on such initial or second Closing
Date, as the case may be; provided that if the Option is not exercised by the
underwriters or the initial purchasers, as the case may be, then the defined
term the "Securities" shall mean only the Initial Securities;
WHEREAS, as incentive for the Holders to purchase the Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this Guarantee, to pay to the Holders of the Securities the
Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein; and
WHEREAS, if a Trust Enforcement Event (as defined herein) has
occurred and is continuing, the rights of holders of the Common Securities to
receive Guarantee Payments (as defined herein) under this Guarantee are
subordinated to the rights of Holders of Preferred Securities to receive
Guarantee Payments under this Guarantee;
NOW, THEREFORE, in consideration of the purchase by each Holder of
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the benefit of
the Holders.
<PAGE> 6
2
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions. In this Guarantee,
unless the context otherwise requires:
(a) capitalized terms used in this Guarantee but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Guarantee has the same meaning
throughout;
(c) all references to "the Guarantee" or "this Guarantee" are to
this Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Guarantee to Articles, Sections and
Recitals are to Articles, Sections and Recitals of this Guarantee, unless
otherwise specified;
(e) unless otherwise defined in this Guarantee, a term defined in
the Trust Indenture Act has the same meaning when used in this Guarantee;
(f) a reference to the singular includes the plural and vice versa
and a reference to any masculine form of a term shall include the feminine form
of a term, as applicable; and
(g) the following terms have the following meanings:
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" has the meaning specified in the Declaration.
"Common Securities" has the meaning specified in the Recitals
hereto.
"Corporate Trust Office" means the principal office of the Guarantee
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Guarantee is located
at One First National Plaza, Suite 0126, Chicago, IL 60670-0126, Attention:
Corporate Trust Services Division.
"Covered Person" means a Holder or beneficial owner of Securities.
"Debentures" means the series of junior subordinated debentures to
be issued by First Security Corporation designated the "____% Junior
Subordinated Debentures due ____" held by the Property Trustee as defined in the
Declaration of the Trust.
<PAGE> 7
3
"Declaration" means the Amended and Restated Declaration of Trust,
dated as of __________ __, ____, as amended, modified or supplemented from time
to time, among the trustees of the Trust named therein, the Guarantor, as
sponsor, and the Holders, from time to time, of undivided undivided beneficial
ownership interests in the assets of the Trust.
"Global Security" means a fully registered, global Capital Security
representing the Preferred Securities.
"Guarantee Event of Default" means a default by the Guarantor on any
of its payment or other obligations under this Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Securities, to the extent not paid by
or on behalf of the Trust: (i) any accumulated and unpaid Distributions (as
defined in the Declaration) that are required to be paid on such Securities to
the extent the Trust has sufficient funds available therefor at the time, (ii)
the redemption price, including all accumulated and unpaid Distributions to the
date of redemption, with respect to any Securities called for redemption by the
Trust, to the extent the Trust shall have sufficient funds available therefor at
the time or (iii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Trust (other than in connection with the distribution of
Debentures to the Holders in exchange for Securities as provided in the
Declaration), the lesser of (a) the aggregate of the liquidation amount and all
accumulated and unpaid Distributions on the Securities to the date of payment,
to the extent the Trust has sufficient funds available therefor and (b) the
amount of assets of the Trust remaining available for distribution to Holders in
liquidation of the Trust (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means The First National Bank of Chicago, until
a Successor Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee and thereafter means each
such Successor Guarantee Trustee.
"Holder" means any holder of Securities, as registered on the books
and records of the Trust; provided, however, that, in determining whether the
Holders of the requisite percentage of Preferred Securities have given any
request, notice, consent or waiver hereunder. Provided that in determining
whether the Holders of the requisite liquidation amount of Preferred Securities
have voted on any matter provided for in this Guarantee, then for the purpose of
such determination only (and not for any other purpose hereunder), if the
Preferred Securities remain in the form of one or more Global Certificates (as
defined in the Declaration), the term "Holders" shall mean the holder of the
Global Certificate acting at the direction of the Beneficial Owners (as defined
in the Declaration).
"Indemnified Person" means the Guarantee Trustee, any Affiliate of
the Guarantee Trustee, or any officers, directors, shareholders, members,
partners, employees, representatives, nominees, custodians or agents of the
Guarantee Trustee.
"Indenture" means the Indenture, dated as of __________, 1999, by
and between First Security Corporation and The First National Bank of Chicago,
and by any other indenture
<PAGE> 8
4
supplemental thereto pursuant to which the Debentures are to be issued to the
Property Trustee as defined in the Declaration of the Trust.
"List of Holders" has the meaning assigned to it in Section 2.2
hereof.
"Majority in Liquidation Amount" means, except as provided in the
terms of the Preferred Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, who are the record
owners of more than 50% of the aggregate liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant class.
In determining whether the Holders of the requisite amount of Securities have
voted, Securities which are owned by the Guarantor or any Affiliate of the
Guarantor or any other obligor on the Securities shall be disregarded for the
purpose of any such determination.
"Officers' Certificate" means, with respect to any Person, a
certificate signed on behalf of such Person by two Authorized Officers (as
defined in the Declaration) of such Person. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in this
Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer on behalf of such Person in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer on behalf of such Person to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer
acting on behalf of such Person, such condition or covenant has been
complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities" has the meaning specified in the Recitals
hereto.
"Redemption Price" has the meaning specified in the Declaration.
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"Responsible Officer" means, with respect to the Guarantee Trustee,
any officer with direct responsibility for the administration of this Guarantee
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Securities" has the meaning specified in the Recitals hereto.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Enforcement Event" in respect of the Securities means an
Indenture Event of Default (as defined in the Indenture) has occurred and is
continuing in respect of the Debentures.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application. (a) This Guarantee is
subject to the provisions of the Trust Indenture Act that are required to be
part of this Guarantee and shall, to the extent applicable, be governed by such
provisions.
(b) If and to the extent that any provision of this Guarantee
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.2 Lists of Holders of Securities. (a) The Guarantor shall
provide the Guarantee Trustee (i) except while the Preferred Securities are
represented by one or more Global Securities at least one Business Day prior to
the date for payment of Distributions, a list, in such form as the Guarantee
Trustee may reasonably require, of the names and addresses of the Holders of the
Securities ("List of Holders") as of the record date relating to the payment of
such Distributions, and (ii) at any other time, within 30 days of receipt by the
Guarantor of a written request from the Guarantee Trustee for a List of Holders
as of a date no more than 15 days before such List of Holders is given to the
Guarantee Trustee; provided that the Guarantor shall not be obligated to provide
such List of Holders at any time the List of Holders does not differ from the
most recent List of Holders given to the Guarantee Trustee by the Guarantor. The
Guarantee Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders given to it, provided
that the Guarantee Trustee may destroy any List of Holders previously given to
it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
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SECTION 2.3 Reports by Guarantee Trustee. Within 60 days after May
15 of each year (commencing with the year of the first anniversary of the
issuance of the Securities), the Guarantee Trustee shall provide to the Holders
of the Securities such reports as are required by Section 313 of the Trust
Indenture Act (if any) in the form and in the manner provided by Section 313 of
the Trust Indenture Act. The Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Guarantee Trustee. The Guarantor
shall provide to the Guarantee Trustee such documents, reports and information
as required by Section 314(a) (if any) of the Trust Indenture Act and the
compliance certificate required by Section 314(a) of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314(a) of the Trust
Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Guarantee that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Guarantee Event of Default; Waiver. The Holders of a
Majority in Liquidation Amount of the Securities may, by vote or written
consent, on behalf of the Holders of all of the Securities, waive any past
Guarantee Event of Default and its consequences. Upon such waiver, any such
Guarantee Event of Default shall cease to exist, and any Guarantee Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Guarantee, but no such waiver shall extend to any subsequent or other
default or Guarantee Event of Default or impair any right consequent thereon.
SECTION 2.7 Guarantee Event of Default; Notice. (a) The Guarantee
Trustee shall, within 90 days after the occurrence of a Guarantee Event of
Default actually known to a Responsible Officer of the Guarantee Trustee,
transmit by mail, first class postage prepaid, to the Holders of the Securities,
notices of all such Guarantee Events of Default, unless such defaults have been
cured before the giving of such notice; provided, that the Guarantee Trustee
shall be protected in withholding such notice if and so long as a Responsible
Officer of the Guarantee Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders of the Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge of
any Guarantee Event of Default unless the Guarantee Trustee shall have received
written notice thereof or a Responsible Officer of the Guarantee Trustee charged
with the administration of the Declaration shall have obtained actual knowledge
thereof.
SECTION 2.8 Conflicting Interests. The Declaration shall be deemed
to be specifically described in this Guarantee for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
<PAGE> 11
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SECTION 2.9 Disclosure of Information. The disclosure of information
as to the names and addresses of the Holders of the Securities in accordance
with Section 312 of the Trust Indenture Act, regardless of the source from which
such information was derived, shall not be deemed to be a violation of any
existing law, or any law hereafter enacted which does not specifically refer to
Section 312 of the Trust Indenture Act, nor shall the Guarantee Trustee be held
accountable by reason of mailing any material pursuant to a request made under
Section 312(b) of the Trust Indenture Act.
SECTION 2.10 Guarantee Trustee May File Proofs of Claim. Upon the
occurrence of a Guarantee Event of Default, the Guarantee Trustee is hereby
authorized to (a) recover judgment, in its own name and as trustee of an express
trust, against the Guarantor for the whole amount of any Guarantee Payments
remaining unpaid and (b) file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have its claims and those of the
Holders of the Securities allowed in any judicial proceedings relative to the
Guarantor, its creditors or its property.
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of Guarantee Trustee.
(a) This Guarantee shall be held by the Guarantee Trustee on behalf
of the Trust for the benefit of the Holders of the Securities, and the Guarantee
Trustee shall not transfer this Guarantee to any Person except a Holder of
Securities exercising his or her rights pursuant to Section 5.4(b) or to a
Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of
its appointment to act as Successor Guarantee Trustee. The right, title and
interest of the Guarantee Trustee in and to this Guarantee shall automatically
vest in any Successor Guarantee Trustee, and such vesting and succession of
title shall be effective whether or not conveyance documents have been executed
and delivered pursuant to the appointment of such Successor Guarantee Trustee.
(b) If a Guarantee Event of Default actually known to a Responsible
Officer of the Guarantee Trustee has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee for the benefit of the Holders of the
Securities.
(c) The Guarantee Trustee, before the occurrence of any Guarantee
Event of Default and after the curing of all Guarantee Events of Default that
may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee, and no implied covenants shall be read
into this Guarantee against the Guarantee Trustee. In case a Guarantee Event of
Default has occurred (that has not been cured or waived pursuant to Section 2.6)
and is actually known to a Responsible Officer of the Guarantee Trustee, the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee, and use the
<PAGE> 12
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same degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Guarantee shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Guarantee Event of
Default and after the curing or waiving of all such Guarantee Events
of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of this
Guarantee, and the Guarantee Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Guarantee, and no implied
covenants or obligations shall be read into this Guarantee
against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and conforming to
the requirements of this Guarantee; but in the case of any
such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Guarantee;
(ii) the Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee
Trustee was negligent in ascertaining the pertinent facts upon which
such judgment was made;
(iii) the Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not less
than a Majority in Liquidation Amount of the Securities relating to
the time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee, or exercising any trust
or power conferred upon the Guarantee Trustee under this Guarantee;
and
(iv) no provision of this Guarantee shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if the Guarantee
Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to it
under the terms of this Guarantee or if the Guarantee Trustee shall
have reasonable grounds
<PAGE> 13
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for believing that an indemnity, reasonably satisfactory to the
Guarantee Trustee, against such risk or liability is not reasonably
assured to it under the terms of this Guarantee.
SECTION 3.2 Certain Rights of Guarantee Trustee. (a) Subject to the
provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely, and shall
be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed
by it to be genuine and to have been signed, sent or presented by
the proper party or parties;
(ii) Any direction or act of the Guarantor contemplated by
this Guarantee shall be sufficiently evidenced by an Officers'
Certificate;
(iii) Whenever, in the administration of this Guarantee,
the Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting any
action hereunder, the Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on
its part, request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall be promptly
delivered by the Guarantor;
(iv) The Guarantee Trustee shall have no duty to see to
any recording, filing or registration or any instrument (or any
rerecording, refiling or re- registration thereof);
(v) The Guarantee Trustee may consult with counsel, and
the advice or opinion of such counsel with respect to legal matters
shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion. Such counsel
may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees. The Guarantee Trustee shall have the
right at any time to seek instructions concerning the administration
of this Guarantee from any court of competent jurisdiction;
(vi) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
at the request or direction of any Holder, unless such Holder shall
have provided to the Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses and the expenses of
the Guarantee Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be
requested by the Guarantee Trustee; provided, that nothing contained
in this Section 3.2(a)(vi) shall be taken to relieve the Guarantee
<PAGE> 14
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Trustee, upon the occurrence of a Guarantee Event of Default, of its
obligation to exercise the rights and powers vested in it by this
Guarantee;
(vii) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Guarantee Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit;
(viii) The Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly
or by or through agents, nominees, custodians or attorneys, and the
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due
care by it hereunder;
(ix) Any action taken by the Guarantee Trustee or its
agents hereunder shall bind the Holders, and the signature of the
Guarantee Trustee or its agents alone shall be sufficient and
effective to perform any such action. No third party shall be
required to inquire as to the authority of the Guarantee Trustee to
so act or as to its compliance with any of the terms and provisions
of this Guarantee, both of which shall be conclusively evidenced by
the Guarantee Trustee's or its agent's taking such action; and
(x) Whenever in the administration of this Guarantee, the
Guarantee Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee (i) may request written
instructions from the Holders of a Majority in Liquidation Amount of
the Securities, (ii) may refrain from enforcing such remedy or right
or taking such other action until such written instructions are
received and (iii) shall be protected in conclusively relying on or
acting in accordance with such written instructions.
(b) No provision of this Guarantee shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent to act in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee.
The recitals contained in this Guarantee shall be taken as the statements of the
Guarantor, and the Guarantee Trustee does not assume any responsibility for
their correctness. The Guarantee Trustee makes no representations as to the
validity or sufficiency of this Guarantee.
<PAGE> 15
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ARTICLE 4
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility.
(a) There shall be at all times a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any state or territory
thereof or of the District of Columbia, or a corporation or other
Person permitted by the Securities and Exchange Commission to act as
an institutional trustee under the Trust Indenture Act, authorized
under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by federal,
state, territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or
examining authority referred to above, then, for the purposes of
this Section 4.1(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible
to so act under Section 4.1(a), the Guarantee Trustee shall immediately resign
in the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Guarantee
Trustee.
(a) Subject to Section 4.2(b), unless a Guarantee Event of Default
shall have occurred and be continuing, the Guarantee Trustee may be appointed or
removed with or without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold such office
until a Successor Guarantee Trustee shall have been appointed or until its
removal or resignation. The
<PAGE> 16
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Guarantee Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Guarantee Trustee and
delivered to the Guarantor, which resignation shall not take effect until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
by instrument in writing executed by such Successor Guarantee Trustee and
delivered to the Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of removal or resignation, the
removed or resigning Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions
to act of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or resignation of
the Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay to
the Guarantee Trustee all amounts owing for fees and reimbursement of expenses
which have accrued to the date of such termination, removal or resignation.
ARTICLE 5
GUARANTEE
SECTION 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full
to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Trust), as and when due, regardless of any defense,
right of set-off or counterclaim that the Trust may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Trust to pay such amounts to the Holders. Notwithstanding anything to the
contrary herein, the Guarantor retains all of its rights under the Indenture to
(i) extend the interest payment period on the Debentures pursuant to Section
3.11 thereof and the Guarantor shall not be obligated hereunder to make any
Guarantee Payments during any Extension Period (as defined in the certificate
evidencing the Debentures) with respect to the Distributions (as defined in the
Declaration) on the Securities and (ii) change the maturity date of the
Debentures to the extent permitted by the Indenture.
SECTION 5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee
and of any liability to which it applies or may apply, presentment, demand for
payment, any right to require a proceeding first against the Trust or any other
Person before proceeding against the Guarantor,
<PAGE> 17
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protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee shall be absolute and unconditional and shall remain in
full force and effect until the entire liquidation amount of all outstanding
Securities shall have been paid and such obligation shall in no way be affected
or impaired by reason of the happening from time to time of any event, including
without limitation, the following, whether or not with notice to, or the consent
of, the Guarantor:
(a) The release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Securities to be performed or
observed by the Trust;
(b) The extension of time for the payment by the Trust of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Securities or the extension of time
for the performance of any other obligation under, arising out of, or in
connection with the Securities (other than an extension of time for payment of
Distributions, Redemption Price, Liquidation Distribution or other sum payable
that results from the extension of any interest payment period on the Debentures
or any change to the maturity date of the Debentures permitted by the
Indenture);
(c) Any failure, omission, delay or lack of diligence on the part of
the Property Trustee or the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Property Trustee or the Holders
pursuant to the terms of the Securities, or any action on the part of the Trust
granting indulgence or extension of any kind;
(d) The voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of the assets of
the Trust;
(e) Any invalidity of, or defect or deficiency in, the Securities;
(f) The settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) Any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
<PAGE> 18
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There shall be no obligation of the Guarantee Trustee or the Holders
to give notice to, or obtain consent of the Guarantor or any other Person with
respect to the happening of any of the foregoing.
No setoff, counterclaim, reduction or diminution of any obligation,
or any defense of any kind or nature that the Guarantor has or may have against
any Holder shall be available hereunder to the Guarantor against such Holder to
reduce the payments to it under this Guarantee.
SECTION 5.4 Rights of Holders.
(a) The Holders of at least a Majority in Liquidation Amount of the
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of this
Guarantee or to direct the exercise of any trust or power conferred upon the
Guarantee Trustee under this Guarantee.
(b) If the Guarantee Trustee fails to enforce this Guarantee, then
any Holder of Securities may, subject to the subordination provisions of Section
6.2, institute a legal proceeding directly against the Guarantor to enforce the
Guarantee Trustee's rights under this Guarantee without first instituting a
legal proceeding against the Trust, the Guarantee Trustee or any other person or
entity. In addition, if the Guarantor has failed to make a Guarantee Payment, a
Holder of Securities may, subject to the subordination provisions of Section
6.2, directly institute a proceeding against the Guarantor for enforcement of
the Guarantee for such payment to the Holder of the Securities of the principal
of or interest on the Debentures on or after the respective due dates specified
in the Debentures, and the amount of the payment will be based on the Holder's
pro rata share of the amount due and owing on all of the Securities. The
Guarantor hereby waives any right or remedy to require that any action on this
Guarantee be brought first against the Trust or any other person or entity
before proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment.
This Guarantee creates a guarantee of payment and not of collection.
SECTION 5.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Securities against the Trust in respect of any amounts paid to such
Holders by the Guarantor under this Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee, if at the time of any such payment,
any amounts are due and unpaid under this Guarantee. If any amount shall be paid
to the Guarantor in violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such amount to the
Guarantee Trustee for the benefit of the Holders.
SECTION 5.7 Independent Obligations.
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The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee notwithstanding the
occurrence of any event referred to in subsections 5.3(a) through 5.3(g),
inclusive, hereof.
ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.
So long as any Securities remain outstanding, if (i) there shall
have occurred an event of default under the Indenture with respect to the
Debentures, (ii) there shall be a Guarantee Event of Default or (iii) the
Guarantor shall have given notice of its election of an Extension Period as
provided in the certificate evidencing the Debentures and shall not have
rescinded such notice, or such Extension Period or any extension thereof shall
be continuing, then the Guarantor shall not, and shall not permit any subsidiary
of the Guarantor, to (x) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
the Guarantor's capital stock or (y) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Guarantor that rank on a parity with or junior in interest to the Debentures or
make any guarantee payments with respect to any guarantee by the Guarantor of
the debt securities of any subsidiary of the Guarantor if such guarantee ranks
on a parity with or junior in interest to the Debentures (other than (a)
dividends or distributions in common stock of the Guarantor, (b) payments under
this Guarantee, (c) any declaration of a dividend in connection with the
implementation of a shareholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, and (d) purchases of common stock related to the issuance of
common stock or rights under any of the Guarantor's benefit plans).
SECTION 6.2 Ranking.
This Guarantee will constitute an unsecured obligation of the
Guarantor and will rank subordinate and junior in right of payment to all Senior
Debt (as defined in the Indenture) of the Guarantor in the same manner and to
the same extent as set forth in Article XIII of the Indenture.
SECTION 6.3 Subordination of Common Securities.
If a Trust Enforcement Event has occurred and is continuing under
the Declaration, the rights of the holders of the Common Securities to receive
Guarantee Payments hereunder shall be subordinated to the rights of the Holders
of the Preferred Securities to receive Guarantee Payments under this Guarantee.
<PAGE> 20
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ARTICLE 7
TERMINATION
SECTION 7.1 Termination.
This Guarantee shall terminate upon (i) full payment of the
Redemption Price of all Securities, (ii) distribution of the Debentures to the
Holders of all the Securities or (iii) full payment of the amounts payable in
accordance with the Declaration upon liquidation of the Trust. Notwithstanding
the foregoing, this Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of Securities must
restore payment of any sums paid under the Securities or under this Guarantee.
ARTICLE 8
INDEMNIFICATION
SECTION 8.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage, liability, expense or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith in
accordance with this Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Guarantee or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason of
such Indemnified Person's negligence or willful misconduct with respect to such
acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of Securities might
properly be paid.
SECTION 8.2 Indemnification.
The Guarantor agrees to indemnify each Indemnified Person for, and
to hold each Indemnified Person harmless against any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with
<PAGE> 21
17
the exercise or performance of any of its powers or duties hereunder. The
obligation to indemnify as set forth in this Section 8.2 shall survive the
termination of this Guarantee.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this Guarantee shall bind
the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Securities then
outstanding.
SECTION 9.2 Amendments.
Except with respect to any changes that do not materially adversely
affect the rights of the Holders (in which case no consent of the Holders will
be required), this Guarantee may not be amended without the prior approval of
the Holders of at least a Majority in Liquidation Amount of the Securities. The
provisions of Section 11.2 of the Declaration with respect to meetings of, and
action by written consent of, the Holders of the Securities apply to the giving
of such approval.
SECTION 9.3 Notices.
All notices provided for in this Guarantee shall be in writing, duly
signed by the party giving such notice, and shall be delivered by hand,
telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Guarantee Trustee, at the Guarantee Trustee's
mailing address set forth below (or such other address as the Guarantee Trustee
may give notice of to the Guarantor and the Holders of the Securities):
The First National Bank of Chicago
One First National Plaza, Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Services Division
Facsimile No.: [(312) 407-1708]
(b) If given to the Guarantor, at the Guarantor's mailing addresses
set forth below (or such other address as the Guarantor may give notice of to
the Guarantee Trustee and the Holders of the Securities):
<PAGE> 22
18
First Security Corporation
79 South Main Street
Salt Lake City, Utah 84111
Attention: Chief Financial Officer
Facsimile No.: (801) 359-6928
(c) If given to any Holder of Securities, at the address set forth
on the books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 9.4 Benefit.
This Guarantee is solely for the benefit of the Holders of the
Securities and, subject to Section 3.1(a), is not separately transferable from
the Securities.
SECTION 9.5 Governing Law.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
[The rest of this page has been left blank intentionally; the signature page
follows.]
<PAGE> 23
19
IN WITNESS WHEREOF, this Guarantee is executed as of the day and
year first above written.
FIRST SECURITY CORPORATION,
as Guarantor
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Guarantee Trustee
By: ____________________________________
Name:
Title:
<PAGE> 1
EXHIBIT 4(e)
CERTIFICATE OF TRUST
OF
FIRST SECURITY CAPITAL II
This Certificate of Trust is being duly executed as of March 9,
1999 for the purposes of forming a business trust pursuant to the Delaware
Business Trust Act (12 Del. C. ss. 3801 et. seq.) (the "Act").
1. Name. The name of the business trust formed hereby is First
Security Capital II (the "Trust").
2. Delaware Trustee. The name and business address of the Delaware
resident trustee of the Trust meeting the requirements of Section 3807 of the
Act are as follows:
First Chicago Delaware Inc.
300 King Street
Wilmington, Delaware 19801
3. Effective Date. This Certificate of Trust, which may be executed
in counterparts, shall be effective immediately upon filing with the Secretary
of State of the State of Delaware.
[The rest of this page has been intentionally left blank;
the signature page follows.]
<PAGE> 2
2
IN WITNESS WHEREOF, the undersigned, being all of the trustees of
the Trust, have duly executed this Certificate of Trust as of the date first
written above.
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By: /s/ SANDRA L. CARUBA
-----------------------------------
Name: Sandra L. Caruba
Title: Vice President
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By: /s/ SANDRA L. CARUBA
-----------------------------------
Name: Sandra L. Caruba
Title: Vice President
/s/ BRAD D. HARDY
---------------------------------------
Brad D. Hardy, as Regular Trustee
/s/ SCOTT C. ULBRICH
---------------------------------------
Scott C. Ulbrich, as Regular Trustee
/s/ DAVID R. WILSON
---------------------------------------
David R. Wilson, as Regular Trustee
<PAGE> 1
EXHIBIT 4(f)
CERTIFICATE OF TRUST
OF
FIRST SECURITY CAPITAL III
This Certificate of Trust is being duly executed as of March 9,
1999 for the purposes of forming a business trust pursuant to the Delaware
Business Trust Act (12 Del. C. ss. 3801 et. seq.) (the "Act").
1. Name. The name of the business trust formed hereby is First
Security Capital III (the "Trust").
2. Delaware Trustee. The name and business address of the Delaware
resident trustee of the Trust meeting the requirements of Section 3807 of the
Act are as follows:
First Chicago Delaware Inc.
300 King Street
Wilmington, Delaware 19801
3. Effective Date. This Certificate of Trust, which may be executed
in counterparts, shall be effective immediately upon filing with the Secretary
of State of the State of Delaware.
[The rest of this page has been intentionally left blank;
the signature page follows.]
<PAGE> 2
2
IN WITNESS WHEREOF, the undersigned, being all of the trustees of
the Trust, have duly executed this Certificate of Trust as of the date first
written above.
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By: /s/ SANDRA L. CARUBA
-----------------------------------
Name: Sandra L. Caruba
Title: Vice President
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By: /s/ SANDRA L. CARUBA
-----------------------------------
Name: Sandra L. Caruba
Title: Vice President
/s/ BRAD D. HARDY
---------------------------------------
Brad D. Hardy, as Regular Trustee
/s/ SCOTT C. ULBRICH
---------------------------------------
Scott C. Ulbrich, as Regular Trustee
/s/ DAVID R. WILSON
---------------------------------------
David R. Wilson, as Regular Trustee
<PAGE> 1
EXHIBIT 4(g)
CERTIFICATE OF TRUST
OF
FIRST SECURITY CAPITAL IV
This Certificate of Trust is being duly executed as of March 9,
1999 for the purposes of forming a business trust pursuant to the Delaware
Business Trust Act (12 Del. C. Section 3801 et. seq.) (the "Act").
1. Name. The name of the business trust formed hereby is First
Security Capital IV (the "Trust").
2. Delaware Trustee. The name and business address of the
Delaware resident trustee of the Trust meeting the requirements of Section 3807
of the Act are as follows:
First Chicago Delaware Inc.
300 King Street
Wilmington, Delaware 19801
3. Effective Date. This Certificate of Trust, which may be
executed in counterparts, shall be effective immediately upon filing with the
Secretary of State of the State of Delaware.
[The rest of this page has been intentionally left blank;
the signature page follows.]
<PAGE> 2
2
IN WITNESS WHEREOF, the undersigned, being all of the trustees of
the Trust, have duly executed this Certificate of Trust as of the date first
written above.
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By: /s/ SANDRA L. CARUBA
-------------------------------
Name: Sandra L. Caruba
Title: Vice President
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By: /s/ SANDRA L. CARUBA
-------------------------------
Name: Sandra L. Caruba
Title: Vice President
/s/ BRAD D. HARDY
-----------------------------------
Brad D. Hardy, as Regular Trustee
/s/ SCOTT C. ULBRICH
-----------------------------------
Scott C. Ulbrich, as Regular Trustee
/s/ DAVID R. WILSON
-----------------------------------
David R. Wilson, as Regular Trustee
<PAGE> 1
EXHIBIT 4(h)
CERTIFICATE OF TRUST
OF
FIRST SECURITY CAPITAL V
This Certificate of Trust is being duly executed as of March 9,
1999 for the purposes of forming a business trust pursuant to the Delaware
Business Trust Act (12 Del. C. Section 3801 et. seq.) (the "Act").
1. Name. The name of the business trust formed hereby is First
Security Capital V (the "Trust").
2. Delaware Trustee. The name and business address of the Delaware
resident trustee of the Trust meeting the requirements of Section 3807 of the
Act are as follows:
First Chicago Delaware Inc.
300 King Street
Wilmington, Delaware 19801
3. Effective Date. This Certificate of Trust, which may be
executed in counterparts, shall be effective immediately upon filing with the
Secretary of State of the State of Delaware.
[The rest of this page has been intentionally left blank;
the signature page follows.]
<PAGE> 2
2
IN WITNESS WHEREOF, the undersigned, being all of the trustees of
the Trust, have duly executed this Certificate of Trust as of the date first
written above.
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By: /s/ SANDRA L. CARUBA
-------------------------------
Name: Sandra L. Caruba
Title: Vice President
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By: /s/ SANDRA L. CARUBA
-------------------------------
Name: Sandra L. Caruba
Title: Vice President
/s/ BRAD D. HARDY
-----------------------------------
Brad D. Hardy, as Regular Trustee
/s/ SCOTT C. ULBRICH
-----------------------------------
Scott C. Ulbrich, as Regular Trustee
/s/ DAVID R. WILSON
-----------------------------------
David R. Wilson, as Regular Trustee
<PAGE> 1
EXHIBIT 4 (i)
DECLARATION OF TRUST
OF
FIRST SECURITY CAPITAL II
This DECLARATION OF TRUST, dated as of March 9, 1999, is entered by
and among FIRST SECURITY CORPORATION, a Delaware corporation, as Sponsor, FIRST
CHICAGO DELAWARE INC., as the initial Delaware Trustee, THE FIRST NATIONAL BANK
OF CHICAGO, as the initial Property Trustee, and BRAD D. HARDY, SCOTT C. ULBRICH
and DAVID R. WILSON, as Regular Trustees (collectively with the Delaware Trustee
and the Property Trustee, the "Trustees"). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby (the "Trust") shall be known as "First
Security Capital II", in which name the Trustees, or the Sponsor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trust the sum of Ten Dollars ($10.00). The Trustees hereby acknowledge
receipt of such amount from the Sponsor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they will hold the trust
estate for the Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del C. ss. 3801 et seq. (the "Business Trust Act"), and that
this document constitutes the governing instrument of the Trust. The Trustees
are hereby authorized and directed to execute and file a certificate of trust
with the Delaware Secretary of State in the form attached hereto.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party (and
substantially in the form included as an exhibit to the 1933 Act Registration
Statement (as defined below)), to provide for the contemplated operation of the
Trust created hereby and the issuance of preferred securities (the "Preferred
Securities") and common securities by the Trust as such securities will be
described therein. Prior to the execution and delivery of such amended and
restated Declaration of Trust, the Trustees shall not have any duty or
obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery and licenses, consents or approvals required by
applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, in each case on behalf of the Trust as sponsor of the Trust, (i) to
prepare for filing with the Securities and Exchange Commission (the
"Commission") (a) a Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and possibly certain other securities and (b) a Registration Statement on
Form 8-A (the "1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or any other national
stock exchange or
<PAGE> 2
2
The Nasdaq National Market (each, an "Exchange") and execute on behalf of the
Trust one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to negotiate and execute an underwriting agreement among the
Trust, the Sponsor and the underwriter(s) thereto relating to the offer and sale
of the Preferred Securities, substantially in the form included or to be
incorporated as an exhibit to the 1933 Act Registration Statement and (iv) to
execute and file such applications, reports, surety bonds, irrevocable consents,
appointments of attorneys for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on
behalf of the Trust, may deem necessary or desirable.
It is hereby acknowledged and agreed that in connection with any
document referred to in clauses (i), (ii) and (iv) above, (A) any Regular
Trustee (or his attorneys-in-fact and agents or the Sponsor as permitted herein)
is authorized to execute such document on behalf of the Trust, provided that the
1933 Act Registration Statement and the 1934 Act Registration Statement shall be
signed by all of the Regular Trustees, and (B) First Chicago Delaware Inc. and
The First National Bank of Chicago, in their capacities as Trustees of the
Trust, shall not be required to join in any such filing or execute on behalf of
the Trust any such document unless required by the rules and regulations of the
Commission, the Exchanges or state securities or blue sky laws, and in such case
only to the extent so required. In connection with all of the foregoing, each
Regular Trustee, solely in such Regular Trustee's capacity as Trustee of the
Trust, hereby constitutes and appoints A. Robert Thorup and R. Gary Winger and
each of them, as such Regular Trustee's true and lawful attorneys-in-fact and
agent, with full power of substitution and resubstitution, for such Regular
Trustee, in such Regular Trustee's name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to the 1933 Act Registration Statement and the 1934 Act Registration Statement
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Commission, the Exchanges and administrators of
state securities or blue sky laws, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as such Regular Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be five (5) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided that, to the extent required by the Business Trust
Act, one Trustee shall be an entity that has its principal place of business in
the State of Delaware. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any Trustee at any time. The Trustees may resign
upon thirty days prior notice to the Sponsor.
<PAGE> 3
3
7. First Chicago Delaware Inc., in its capacity as trustee, shall
not have the powers or the duties of the Trustee set forth herein (except as may
be required under the Business trust Act) and shall be a Trustee hereunder for
the sole and limited purpose of fulfilling the requirements of ss. 3807(a) of
the Business Trust Act.
[The rest of this page has been left blank intentionally;
the signature page follows.]
<PAGE> 4
4
IN WITNESS WHEREOF, the parties hereto have caused this Declaration
of Trust to be duly executed as of the day and year first above written.
FIRST SECURITY CORPORATION,
as Sponsor
By: /s/ MORGAN J. EVANS
---------------------------------------------
Name: Morgan J. Evans
Title: President and Chief Operating Officer
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By: /s/ SANDRA L. CARUBA
---------------------------------------------
Name: Sandra L. Caruba
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By: /s/ SANDRA L. CARUBA
---------------------------------------------
Name: Sandra L. Caruba
Title: Vice President
/s/ BRAD D. HARDY ,
-------------------------------------------------
Brad D. Hardy, as Regular Trustee
/s/ SCOTT C. ULBRICH ,
-------------------------------------------------
Scott C. Ulbrich, as Regular Trustee
/s/ DAVID R. WILSON ,
-------------------------------------------------
David R. Wilson, as Regular Trustee
<PAGE> 1
EXHIBIT 4 (j)
DECLARATION OF TRUST
OF
FIRST SECURITY CAPITAL III
This DECLARATION OF TRUST, dated as of March 9, 1999, is entered by
and among FIRST SECURITY CORPORATION, a Delaware corporation, as Sponsor, FIRST
CHICAGO DELAWARE INC., as the initial Delaware Trustee, THE FIRST NATIONAL BANK
OF CHICAGO, as the initial Property Trustee, and BRAD D. HARDY, SCOTT C. ULBRICH
and DAVID R. WILSON, as Regular Trustees (collectively with the Delaware Trustee
and the Property Trustee, the "Trustees"). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby (the "Trust") shall be known as "First
Security Capital III", in which name the Trustees, or the Sponsor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trust the sum of Ten Dollars ($10.00). The Trustees hereby acknowledge
receipt of such amount from the Sponsor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they will hold the trust
estate for the Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del C. ss. 3801 et seq. (the "Business Trust Act"), and that
this document constitutes the governing instrument of the Trust. The Trustees
are hereby authorized and directed to execute and file a certificate of trust
with the Delaware Secretary of State in the form attached hereto.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party (and
substantially in the form included as an exhibit to the 1933 Act Registration
Statement (as defined below)), to provide for the contemplated operation of the
Trust created hereby and the issuance of preferred securities (the "Preferred
Securities") and common securities by the Trust as such securities will be
described therein. Prior to the execution and delivery of such amended and
restated Declaration of Trust, the Trustees shall not have any duty or
obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery and licenses, consents or approvals required by
applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, in each case on behalf of the Trust as sponsor of the Trust, (i) to
prepare for filing with the Securities and Exchange Commission (the
"Commission") (a) a Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and possibly certain other securities and (b) a Registration Statement on
Form 8-A (the "1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or any other national
stock exchange or
<PAGE> 2
2
The Nasdaq National Market (each, an "Exchange") and execute on behalf of the
Trust one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to negotiate and execute an underwriting agreement among the
Trust, the Sponsor and the underwriter(s) thereto relating to the offer and sale
of the Preferred Securities, substantially in the form included or to be
incorporated as an exhibit to the 1933 Act Registration Statement and (iv) to
execute and file such applications, reports, surety bonds, irrevocable consents,
appointments of attorneys for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on
behalf of the Trust, may deem necessary or desirable.
It is hereby acknowledged and agreed that in connection with any
document referred to in clauses (i), (ii) and (iv) above, (A) any Regular
Trustee (or his attorneys-in-fact and agents or the Sponsor as permitted herein)
is authorized to execute such document on behalf of the Trust, provided that the
1933 Act Registration Statement and the 1934 Act Registration Statement shall be
signed by all of the Regular Trustees, and (B) First Chicago Delaware Inc. and
The First National Bank of Chicago, in their capacities as Trustees of the
Trust, shall not be required to join in any such filing or execute on behalf of
the Trust any such document unless required by the rules and regulations of the
Commission, the Exchanges or state securities or blue sky laws, and in such case
only to the extent so required. In connection with all of the foregoing, each
Regular Trustee, solely in such Regular Trustee's capacity as Trustee of the
Trust, hereby constitutes and appoints A. Robert Thorup and R. Gary Winger and
each of them, as such Regular Trustee's true and lawful attorneys-in-fact and
agent, with full power of substitution and resubstitution, for such Regular
Trustee, in such Regular Trustee's name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to the 1933 Act Registration Statement and the 1934 Act Registration Statement
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Commission, the Exchanges and administrators of
state securities or blue sky laws, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as such Regular Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be five (5) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided that, to the extent required by the Business Trust
Act, one Trustee shall be an entity that has its principal place of business in
the State of Delaware. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any Trustee at any time. The Trustees may resign
upon thirty days prior notice to the Sponsor.
<PAGE> 3
3
7. First Chicago Delaware Inc., in its capacity as trustee, shall
not have the powers or the duties of the Trustee set forth herein (except as may
be required under the Business trust Act) and shall be a Trustee hereunder for
the sole and limited purpose of fulfilling the requirements of ss. 3807(a) of
the Business Trust Act.
[The rest of this page has been left blank intentionally;
the signature page follows.]
<PAGE> 4
4
IN WITNESS WHEREOF, the parties hereto have caused this Declaration
of Trust to be duly executed as of the day and year first above written.
FIRST SECURITY CORPORATION,
as Sponsor
By: /s/ MORGAN J. EVANS
--------------------------------------------
Name: Morgan J. Evans
Title: President and Chief Operating Officer
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By: /s/ SANDRA L. CARUBA
--------------------------------------------
Name: Sandra L. Caruba
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By: /s/ SANDRA L. CARUBA
--------------------------------------------
Name: Sandra L. Caruba
Title: Vice President
/s/ BRAD D. HARDY ,
------------------------------------------------
Brad D. Hardy, as Regular Trustee
/s/ SCOTT C. ULBRICH ,
------------------------------------------------
Scott C. Ulbrich, as Regular Trustee
/s/ DAVID R. WILSON ,
------------------------------------------------
David R. Wilson, as Regular Trustee
<PAGE> 1
EXHIBIT 4 (k)
DECLARATION OF TRUST
OF
FIRST SECURITY CAPITAL IV
This DECLARATION OF TRUST, dated as of March 9, 1999, is entered by
and among FIRST SECURITY CORPORATION, a Delaware corporation, as Sponsor, FIRST
CHICAGO DELAWARE INC., as the initial Delaware Trustee, THE FIRST NATIONAL BANK
OF CHICAGO, as the initial Property Trustee, and BRAD D. HARDY, SCOTT C. ULBRICH
and DAVID R. WILSON, as Regular Trustees (collectively with the Delaware Trustee
and the Property Trustee, the "Trustees"). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby (the "Trust") shall be known as "First
Security Capital IV", in which name the Trustees, or the Sponsor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trust the sum of Ten Dollars ($10.00). The Trustees hereby acknowledge
receipt of such amount from the Sponsor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they will hold the trust
estate for the Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del C. ss. 3801 et seq. (the "Business Trust Act"), and that
this document constitutes the governing instrument of the Trust. The Trustees
are hereby authorized and directed to execute and file a certificate of trust
with the Delaware Secretary of State in the form attached hereto.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party (and
substantially in the form included as an exhibit to the 1933 Act Registration
Statement (as defined below)), to provide for the contemplated operation of the
Trust created hereby and the issuance of preferred securities (the "Preferred
Securities") and common securities by the Trust as such securities will be
described therein. Prior to the execution and delivery of such amended and
restated Declaration of Trust, the Trustees shall not have any duty or
obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery and licenses, consents or approvals required by
applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, in each case on behalf of the Trust as sponsor of the Trust, (i) to
prepare for filing with the Securities and Exchange Commission (the
"Commission") (a) a Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and possibly certain other securities and (b) a Registration Statement on
Form 8-A (the "1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or any other national
stock exchange or
<PAGE> 2
2
The Nasdaq National Market (each, an "Exchange") and execute on behalf of the
Trust one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to negotiate and execute an underwriting agreement among the
Trust, the Sponsor and the underwriter(s) thereto relating to the offer and sale
of the Preferred Securities, substantially in the form included or to be
incorporated as an exhibit to the 1933 Act Registration Statement and (iv) to
execute and file such applications, reports, surety bonds, irrevocable consents,
appointments of attorneys for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on
behalf of the Trust, may deem necessary or desirable.
It is hereby acknowledged and agreed that in connection with any
document referred to in clauses (i), (ii) and (iv) above, (A) any Regular
Trustee (or his attorneys-in-fact and agents or the Sponsor as permitted herein)
is authorized to execute such document on behalf of the Trust, provided that the
1933 Act Registration Statement and the 1934 Act Registration Statement shall be
signed by all of the Regular Trustees, and (B) First Chicago Delaware Inc. and
The First National Bank of Chicago, in their capacities as Trustees of the
Trust, shall not be required to join in any such filing or execute on behalf of
the Trust any such document unless required by the rules and regulations of the
Commission, the Exchanges or state securities or blue sky laws, and in such case
only to the extent so required. In connection with all of the foregoing, each
Regular Trustee, solely in such Regular Trustee's capacity as Trustee of the
Trust, hereby constitutes and appoints A. Robert Thorup and R. Gary Winger and
each of them, as such Regular Trustee's true and lawful attorneys-in-fact and
agent, with full power of substitution and resubstitution, for such Regular
Trustee, in such Regular Trustee's name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to the 1933 Act Registration Statement and the 1934 Act Registration Statement
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Commission, the Exchanges and administrators of
state securities or blue sky laws, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as such Regular Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be five (5) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided that, to the extent required by the Business Trust
Act, one Trustee shall be an entity that has its principal place of business in
the State of Delaware. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any Trustee at any time. The Trustees may resign
upon thirty days prior notice to the Sponsor.
<PAGE> 3
3
7. First Chicago Delaware Inc., in its capacity as trustee, shall
not have the powers or the duties of the Trustee set forth herein (except as may
be required under the Business trust Act) and shall be a Trustee hereunder for
the sole and limited purpose of fulfilling the requirements of ss. 3807(a) of
the Business Trust Act.
[The rest of this page has been left blank intentionally;
the signature page follows.]
<PAGE> 4
4
IN WITNESS WHEREOF, the parties hereto have caused this Declaration
of Trust to be duly executed as of the day and year first above written.
FIRST SECURITY CORPORATION,
as Sponsor
By: /s/ MORGAN J. EVANS
--------------------------------------------
Name: Morgan J. Evans
Title: President and Chief Operating Officer
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By: /s/ SANDRA L. CARUBA
--------------------------------------------
Name: Sandra L. Caruba
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By: /s/ SANDRA L. CARUBA
--------------------------------------------
Name: Sandra L. Caruba
Title: Vice President
/s/ BRAD D. HARDY ,
------------------------------------------------
Brad D. Hardy, as Regular Trustee
/s/ SCOTT C. ULBRICH ,
------------------------------------------------
Scott C. Ulbrich, as Regular Trustee
/s/ DAVID R. WILSON ,
------------------------------------------------
David R. Wilson, as Regular Trustee
<PAGE> 1
EXHIBIT 4(l)
DECLARATION OF TRUST
OF
FIRST SECURITY CAPITAL V
This DECLARATION OF TRUST, dated as of March 9, 1999, is entered by
and among FIRST SECURITY CORPORATION, a Delaware corporation, as Sponsor, FIRST
CHICAGO DELAWARE INC., as the initial Delaware Trustee, THE FIRST NATIONAL BANK
OF CHICAGO, as the initial Property Trustee, and BRAD D. HARDY, SCOTT C. ULBRICH
and DAVID R. WILSON, as Regular Trustees (collectively with the Delaware Trustee
and the Property Trustee, the "Trustees"). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby (the "Trust") shall be known as "First
Security Capital V", in which name the Trustees, or the Sponsor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trust the sum of Ten Dollars ($10.00). The Trustees hereby acknowledge
receipt of such amount from the Sponsor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they will hold the trust
estate for the Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del C. ss. 3801 et seq. (the "Business Trust Act"), and that
this document constitutes the governing instrument of the Trust. The Trustees
are hereby authorized and directed to execute and file a certificate of trust
with the Delaware Secretary of State in the form attached hereto.
3. The Sponsor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party (and
substantially in the form included as an exhibit to the 1933 Act Registration
Statement (as defined below)), to provide for the contemplated operation of the
Trust created hereby and the issuance of preferred securities (the "Preferred
Securities") and common securities by the Trust as such securities will be
described therein. Prior to the execution and delivery of such amended and
restated Declaration of Trust, the Trustees shall not have any duty or
obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery and licenses, consents or approvals required by
applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, in each case on behalf of the Trust as sponsor of the Trust, (i) to
prepare for filing with the Securities and Exchange Commission (the
"Commission") (a) a Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and possibly certain other securities and (b) a Registration Statement on
Form 8-A (the "1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or any other national
stock exchange or
<PAGE> 2
2
The Nasdaq National Market (each, an "Exchange") and execute on behalf of the
Trust one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to negotiate and execute an underwriting agreement among the
Trust, the Sponsor and the underwriter(s) thereto relating to the offer and sale
of the Preferred Securities, substantially in the form included or to be
incorporated as an exhibit to the 1933 Act Registration Statement and (iv) to
execute and file such applications, reports, surety bonds, irrevocable consents,
appointments of attorneys for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on
behalf of the Trust, may deem necessary or desirable.
It is hereby acknowledged and agreed that in connection with any
document referred to in clauses (i), (ii) and (iv) above, (A) any Regular
Trustee (or his attorneys-in-fact and agents or the Sponsor as permitted herein)
is authorized to execute such document on behalf of the Trust, provided that the
1933 Act Registration Statement and the 1934 Act Registration Statement shall be
signed by all of the Regular Trustees, and (B) First Chicago Delaware Inc. and
The First National Bank of Chicago, in their capacities as Trustees of the
Trust, shall not be required to join in any such filing or execute on behalf of
the Trust any such document unless required by the rules and regulations of the
Commission, the Exchanges or state securities or blue sky laws, and in such case
only to the extent so required. In connection with all of the foregoing, each
Regular Trustee, solely in such Regular Trustee's capacity as Trustee of the
Trust, hereby constitutes and appoints A. Robert Thorup and R. Gary Winger and
each of them, as such Regular Trustee's true and lawful attorneys-in-fact and
agent, with full power of substitution and resubstitution, for such Regular
Trustee, in such Regular Trustee's name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to the 1933 Act Registration Statement and the 1934 Act Registration Statement
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Commission, the Exchanges and administrators of
state securities or blue sky laws, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as such Regular Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be five (5) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided that, to the extent required by the Business Trust
Act, one Trustee shall be an entity that has its principal place of business in
the State of Delaware. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any Trustee at any time. The Trustees may resign
upon thirty days prior notice to the Sponsor.
<PAGE> 3
3
7. First Chicago Delaware Inc., in its capacity as trustee, shall
not have the powers or the duties of the Trustee set forth herein (except as may
be required under the Business trust Act) and shall be a Trustee hereunder for
the sole and limited purpose of fulfilling the requirements of ss. 3807(a) of
the Business Trust Act.
[The rest of this page has been left blank intentionally;
the signature page follows.]
<PAGE> 4
4
IN WITNESS WHEREOF, the parties hereto have caused this Declaration
of Trust to be duly executed as of the day and year first above written.
FIRST SECURITY CORPORATION,
as Sponsor
By: /s/ MORGAN J. EVANS
--------------------------------------------
Name: Morgan J. Evans
Title: President and Chief Operating Officer
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By: /s/ SANDRA L. CARUBA
--------------------------------------------
Name: Sandra L. Caruba
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By: /s/ SANDRA L. CARUBA
--------------------------------------------
Name: Sandra L. Caruba
Title: Vice President
/s/ BRAD D. HARDY ,
------------------------------------------------
Brad D. Hardy, as Regular Trustee
/s/ SCOTT C. ULBRICH ,
------------------------------------------------
Scott C. Ulbrich, as Regular Trustee
/s/ DAVID R. WILSON ,
------------------------------------------------
David R. Wilson, as Regular Trustee
<PAGE> 1
Exhibit 5(a)
[Letterhead of Richards, Layton & Finger, P.A.]
April 15, 1999
First Security Capital II
79 South Main Street
Salt Lake City, Utah 84111
Re: First Security Capital II
Ladies and Gentlemen:
We have acted as special Delaware counsel for First Security
Corporation, a Delaware corporation (the "Company"), and First Security Capital
II, a Delaware business trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of March 9, 1999
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on March 9, 1999;
(a) The Declaration of Trust of the Trust, dated as of March 9,
1999, among the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Declaration of Trust of the Trust
(including Exhibits A and B thereto) (the "Declaration"), to be entered into
among the Company, as sponsor, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) Amendment No. 1 to the Registration Statement on Form S-3 (the
"Registration Statement"), including a prospectus and prospectus supplement
(jointly, the "Prospectus"), relating to the Capital Securities of the Trust
representing undivided beneficial interests in the assets of the Trust (each, a
"Capital Security" and collectively,
<PAGE> 2
First Security Capital II
April 15, 1999
Page 2
the "Capital Securities"), as proposed to be filed by the Company, the Trust and
others with the Securities and Exchange Commission on or about April 15, 1999;
and
(e) A Certificate of Good Standing for the Trust, dated April 15,
1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined
are used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (e) above. In
particular, we have not reviewed any document (other than the documents listed
in paragraphs (a) through (e) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent with
the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i)
the authenticity of all documents submitted to us as authentic originals, (ii)
the conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, that each
party to the documents examined by us has been duly created, organized or
formed, as the case may be, and is validly existing in good standing under the
laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) that each party to the documents examined
by us has duly authorized, executed and delivered such documents, (vi) the
receipt by each Person to whom a Capital Security is to be issued by the Trust
(collectively, the "Capital Security Holders") of a Capital Security Certificate
for such Capital Security and the payment for the Capital Security acquired by
it, in accordance with the Declaration and the Registration Statement, (vii)
that the Capital Securities are issued and sold to the Capital Security Holders
in accordance with the Declaration and the Registration Statement, and (viii)
that First Chicago Delaware Inc. satisfies for the Trust the requirements
<PAGE> 3
First Security Capital II
April 15, 1999
Page 3
of Section 3807 of the Business Trust Act. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
1. The Capital Securities will represent valid and, subject to
the qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
1. The Capital Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Capital Security
Holders may be obligated to make payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Legal Opinions" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/s/ RICHARDS, LAYTON & FINGER, P.A.
-----------------------------------
RICHARDS, LAYTON & FINGER, P.A.
BJK/CDR
<PAGE> 1
Exhibit 5(b)
[Letterhead of Richards, Layton & Finger, P.A.]
April 15, 1999
First Security Capital III
79 South Main Street
Salt Lake City, Utah 84111
Re: First Security Capital III
Ladies and Gentlemen:
We have acted as special Delaware counsel for First Security
Corporation, a Delaware corporation (the "Company"), and First Security Capital
III, a Delaware business trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of March 9, 1999
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on March 9, 1999;
(a) The Declaration of Trust of the Trust, dated as of March 9,
1999, among the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Declaration of Trust of the Trust
(including Exhibits A and B thereto) (the "Declaration"), to be entered into
among the Company, as sponsor, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) Amendment No. 1 to the Registration Statement on Form S-3 (the
"Registration Statement"), including a prospectus (the "Prospectus"), relating
to the Capital Securities of the Trust representing undivided beneficial
interests in the assets of the Trust (each, a "Capital Security" and
collectively, the "Capital Securities"), as proposed to be
<PAGE> 2
First Security Capital III
April 15, 1999
Page 2
filed by the Company, the Trust and others with the Securities and Exchange
Commission on or about April 15, 1999; and
(e) A Certificate of Good Standing for the Trust, dated April 15,
1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined
are used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (e) above. In
particular, we have not reviewed any document (other than the documents listed
in paragraphs (a) through (e) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent with
the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i)
the authenticity of all documents submitted to us as authentic originals, (ii)
the conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, that each
party to the documents examined by us has been duly created, organized or
formed, as the case may be, and is validly existing in good standing under the
laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) that each party to the documents examined
by us has duly authorized, executed and delivered such documents, (vi) the
receipt by each Person to whom a Capital Security is to be issued by the Trust
(collectively, the "Capital Security Holders") of a Capital Security Certificate
for such Capital Security and the payment for the Capital Security acquired by
it, in accordance with the Declaration and the Registration Statement, (vii)
that the Capital Securities are issued and sold to the Capital Security Holders
in accordance with the Declaration and the Registration Statement, and (viii)
that First Chicago Delaware Inc. satisfies for the Trust the requirements
<PAGE> 3
First Security Capital III
April 15, 1999
Page 3
of Section 3807 of the Business Trust Act. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
1. The Capital Securities will represent valid and, subject to
the qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
1. The Capital Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Capital Security
Holders may be obligated to make payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Legal Opinions" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/S/ RICHARDS, LAYTON & FINGER, P.A.
-----------------------------------
RICHARDS, LAYTON & FINGER, P.A.
BJK/CDR
<PAGE> 1
Exhibit 5(c)
[Letterhead of Richards, Layton & Finger, P.A.]
April 15, 1999
First Security Capital IV
79 South Main Street
Salt Lake City, Utah 84111
Re: First Security Capital IV
Ladies and Gentlemen:
We have acted as special Delaware counsel for First Security
Corporation, a Delaware corporation (the "Company"), and First Security Capital
IV, a Delaware business trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of March 9, 1999
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on March 9, 1999;
(a) The Declaration of Trust of the Trust, dated as of March 9,
1999, among the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Declaration of Trust of the Trust
(including Exhibits A and B thereto) (the "Declaration"), to be entered into
among the Company, as sponsor, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) Amendment No. 1 to the Registration Statement on Form S-3 (the
"Registration Statement"), including a prospectus (the "Prospectus"), relating
to the Capital Securities of the Trust representing undivided beneficial
interests in the assets of the Trust (each, a "Capital Security" and
collectively, the "Capital Securities"), as proposed to be
<PAGE> 2
First Security Capital IV
April 15, 1999
Page 2
filed by the Company, the Trust and others with the Securities and Exchange
Commission on or about April 15, 1999; and
(e) A Certificate of Good Standing for the Trust, dated April 15,
1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined
are used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (e) above. In
particular, we have not reviewed any document (other than the documents listed
in paragraphs (a) through (e) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent with
the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i)
the authenticity of all documents submitted to us as authentic originals, (ii)
the conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, that each
party to the documents examined by us has been duly created, organized or
formed, as the case may be, and is validly existing in good standing under the
laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) that each party to the documents examined
by us has duly authorized, executed and delivered such documents, (vi) the
receipt by each Person to whom a Capital Security is to be issued by the Trust
(collectively, the "Capital Security Holders") of a Capital Security Certificate
for such Capital Security and the payment for the Capital Security acquired by
it, in accordance with the Declaration and the Registration Statement, (vii)
that the Capital Securities are issued and sold to the Capital Security Holders
in accordance with the Declaration and the Registration Statement, and (viii)
that First Chicago Delaware Inc. satisfies for the Trust the requirements
<PAGE> 3
First Security Capital IV
April 15, 1999
Page 3
of Section 3807 of the Business Trust Act. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
1. The Capital Securities will represent valid and, subject to
the qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
1. The Capital Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Capital Security
Holders may be obligated to make payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Legal Opinions" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/S/ RICHARDS, LAYTON & FINGER, P.A.
-----------------------------------
RICHARDS, LAYTON & FINGER, P.A.
BJK/CDR
<PAGE> 1
Exhibit 5(d)
[Letterhead of Richards, Layton & Finger, P.A.]
April 15, 1999
First Security Capital V
79 South Main Street
Salt Lake City, Utah 84111
Re: First Security Capital V
Ladies and Gentlemen:
We have acted as special Delaware counsel for First Security
Corporation, a Delaware corporation (the "Company"), and First Security Capital
V, a Delaware business trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of March 9, 1999
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on March 9, 1999;
(a) The Declaration of Trust of the Trust, dated as of March 9,
1999, among the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Declaration of Trust of the Trust
(including Exhibits A and B thereto) (the "Declaration"), to be entered into
among the Company, as sponsor, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) Amendment No. 1 to the Registration Statement on Form S-3 (the
"Registration Statement"), including a prospectus (the "Prospectus"), relating
to the Capital Securities of the Trust representing undivided beneficial
interests in the assets of the Trust (each, a "Capital Security" and
collectively, the "Capital Securities"), as proposed to be
<PAGE> 2
First Security Capital V
April 15, 1999
Page 2
filed by the Company, the Trust and others with the Securities and Exchange
Commission on or about April 15, 1999; and
(e) A Certificate of Good Standing for the Trust, dated April 15,
1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined
are used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (e) above. In
particular, we have not reviewed any document (other than the documents listed
in paragraphs (a) through (e) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent with
the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i)
the authenticity of all documents submitted to us as authentic originals, (ii)
the conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, that each
party to the documents examined by us has been duly created, organized or
formed, as the case may be, and is validly existing in good standing under the
laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) that each party to the documents examined
by us has duly authorized, executed and delivered such documents, (vi) the
receipt by each Person to whom a Capital Security is to be issued by the Trust
(collectively, the "Capital Security Holders") of a Capital Security Certificate
for such Capital Security and the payment for the Capital Security acquired by
it, in accordance with the Declaration and the Registration Statement, (vii)
that the Capital Securities are issued and sold to the Capital Security Holders
in accordance with the Declaration and the Registration Statement, and (viii)
that First Chicago Delaware Inc. satisfies for the Trust the requirements
<PAGE> 3
First Security Capital V
April 15, 1999
Page 3
of Section 3807 of the Business Trust Act. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
1. The Capital Securities will represent valid and, subject to
the qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
1. The Capital Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Capital Security
Holders may be obligated to make payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Legal Opinions" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/S/ RICHARDS, LAYTON & FINGER, P.A.
-----------------------------------
RICHARDS, LAYTON & FINGER, P.A.
BJK/CDR
<PAGE> 1
[Letterhead of Ray Quinney & Nebeker]
Exhibits 5(e) and 8(a)
April 15, 1999
First Security Corporation
and First Security Capital II
79 South Main Street
Salt Lake City, Utah 84111
Re: FIRST SECURITY CORPORATION AND FIRST SECURITY CAPITAL II
Ladies and Gentlemen:
We have acted as counsel to First Security Corporation, a Delaware
corporation (the "Company"), and as counsel to First Security Capital II (the
"Trust"), First Security Capital III, First Security Capital IV and First
Security Capital V, each a Delaware business trust (collectively, the "Trusts"
and, together with the Company, the "Registrants"), in connection with the
Registration Statement on Form S-3 of the Registrants, filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), which relates to the issuance of (i) preferred securities
representing beneficial ownership interests in each respective Trust which
issues them (the "Preferred Securities"), (ii) unconditional and irrevocable
guarantees (the "Guarantees" and, each, a "Guarantee") of the obligations of the
Trusts under the Preferred Securities that may be issued by the Company and
(iii) junior subordinated debentures (the "Debentures") to be issued by the
Company.
In connection with this opinion, we have investigated such questions of
law, examined such corporate documents and records of the Company and the Trust,
and certificates of public officials and other documents concerning the Company
and/or the Trust, and received such information from officers and
representatives of the Company and the Trust as we have deemed necessary or
appropriate for purposes of this opinion. We have examined, among other
documents:
(a) the Certificate of Trust of the Trust, dated as of March 9, 1999
(the
<PAGE> 2
First Security Corporation
First Security Capital II
April 15, 1999
Page 3
"Certificate"), as filed with the Secretary of State of the State of Delaware
(the "Secretary of State") on March 9, 1999;
(b) the Declaration of Trust of the Trust, dated as of March
9, 1999, among the Company and the trustees of the Trust named therein;
(c) an executed copy of the Registration Statement, relating to the
Preferred Securities of the Trust representing preferred undivided beneficial
interests in the assets of the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"), as amended by a Pre-Effective
Amendment No. 1 (the "Pre-Effective Amendment"), that the Registrants propose to
file with the Commission on the date hereof;
(d) the form of the Amended and Restated Declaration of Trust of the
Trust (the "Declaration"), to be entered among the Company, as sponsor, the
trustees of the Trust named therein, and the holders, from time to time, of
undivided beneficial interests in the assets of the Trust;
(e) the Indenture, dated as of March 30, 1999 the ("Indenture"), by and
between the Company and The First National Bank of Chicago, as indenture
trustee;
(f) the form of the Guarantee Agreement (the "Guarantee Agreement"), to
be entered between the Company and The First National Bank of Chicago, as
guarantee trustee (the "Guarantee Trustee");
(g) the form of the underwriting agreement to be entered among the
Trust, as issuer, the Company, as guarantor, and the underwriters to be named
therein relating to the issuance of Preferred Securities of the Trust under the
Registration Statement; and
(h) the other exhibits to the Registration Statement and the
Pre-Effective Amendment.
Based upon the foregoing, and subject to the qualifications and
exceptions heretofore and hereinafter set forth, we are of the opinion that:
1. With respect to the Debentures to be issued under the Indenture,
when such Debentures have been duly executed, authenticated, issued and
delivered in accordance with the provisions of such Indenture upon payment of
the consideration therefor as contemplated by the Registration Statement, such
Debentures will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith
<PAGE> 3
First Security Corporation
First Security Capital II
April 15, 1999
Page 4
and fair dealing.
2. With respect to the Guarantee to be issued under the Guarantee
Agreement, when (i) such Guarantee Agreement has been validly executed and
delivered by the Company and by the Guarantee Trustee and (ii) such Guarantee
has been duly executed, authenticated, issued and delivered in accordance with
the provisions of such Guarantee Agreement, such Guarantee will constitute a
valid and legally binding obligation of the Company, enforceable in accordance
with its terms subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
3. a. The Trust will be classified as a grantor trust for United States
federal income tax purposes and not as an association taxable as a corporation;
and
b. The Debentures will be classified as debt for United States
federal income tax purposes.
The foregoing opinions are subject to the following assumptions, exceptions,
qualifications and limitations:
c. In rendering our opinions we have assumed the genuineness of all
signatures on all documents, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals and the conformity
with original documents of all documents submitted to us as copies, the
authenticity of the originals of such copies, the due authorization, execution
and delivery of all instruments and documents by parties other than the Company
and the Trust, and that such instruments and documents are the valid, binding
and enforceable obligations of such persons.
d. We have assumed that the Registration Statement, as amended by
the Pre-Effective Amendment, will have become effective under the Act at the
time of issuance, offering and sale of any such Preferred Securities, Debentures
and Guarantees.
e. We are members of the Bar of the State of Utah, and we render no
opinion herein as to matters involving the laws of any jurisdiction other than
the State of Utah and the federal laws of the United States of America.
f. This opinion is limited to the present laws of the States of Utah
and of the United States of America, and to the facts bearing upon this opinion
as they presently exist. We assume no obligation to revise or supplement this
opinion.
g. The opinions and conclusions set forth in paragraph 3 are based
upon the
<PAGE> 4
First Security Corporation
First Security Capital II
April 15, 1999
Page 5
federal income tax laws of the United States, including the Internal Revenue
Code of 1986, as amended, Treasury Regulations and judicial and administrative
interpretations thereof, as they exist as of the date of this opinion. There can
be no assurance that the legal authorities upon which our opinion is based will
not be modified, revoked, supplemented or otherwise changed. To the extent of
any such changes, our opinion is not applicable. Furthermore, we undertake no
obligation to reexamine or in any way revise our opinion in the light of any
such changes.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Opinions" in the prospectus forming a part of the Registration Statement.
Very truly yours,
/s/ RAY, QUINNEY & NEBEKER
-------------------------------
RAY, QUINNEY & NEBEKER
<PAGE> 1
[Letterhead of Ray, Quinney & Nebeker]
Exhibits 5(f) and 8(b)
April 15, 1999
First Security Corporation
and First Security Capital III
79 South Main Street
Salt Lake City, Utah 84111
Re: FIRST SECURITY CORPORATION AND FIRST SECURITY CAPITAL III
Ladies and Gentlemen:
We have acted as counsel to First Security Corporation, a Delaware
corporation (the "Company"), and as counsel to First Security Capital III (the
"Trust"), First Security Capital II, First Security Capital IV, and First
Security Capital V, each a Delaware business trust (collectively, the "Trusts"
and, together with the Company, the "Registrants"), in connection with the
Registration Statement on Form S-3 of the Registrants, filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), which relates to the issuance of (i) preferred securities
representing beneficial ownership interests in each respective Trust which
issues them (the "Preferred Securities"), (ii) unconditional and irrevocable
guarantees (the "Guarantees" and, each, a "Guarantee") of the obligations of the
Trusts under the Preferred Securities that may be issued by the Company and
(iii) junior subordinated debentures (the "Debentures") to be issued by the
Company.
In connection with this opinion, we have investigated such questions of
law, examined such corporate documents and records of the Company and the Trust,
and certificates of public officials and other documents concerning the Company
and/or the Trust, and received such information from officers and
representatives of the Company and the Trust as we have deemed necessary or
appropriate for purposes of this opinion. We have examined, among other
documents:
(a) the Certificate of Trust of the Trust, dated as of March 9, 1999
(the
<PAGE> 2
First Security Corporation
First Security Capital III
April 15, 1999
Page 3
"Certificate"), as filed with the Secretary of State of the State of Delaware
(the "Secretary of State") on March 9, 1999;
(b) the Declaration of Trust of the Trust, dated as of March 9, 1999,
among the Company and the trustees of the Trust named therein;
(c) an executed copy of the Registration Statement, as amended,
relating to the Preferred Securities of the Trust representing preferred
undivided beneficial interests in the assets of the Trust (each, a "Preferred
Security" and collectively, the "Preferred Securities");
(d) the form of the Amended and Restated Declaration of Trust of the
Trust (the "Declaration"), to be entered among the Company, as sponsor, the
trustees of the Trust named therein, and the holders, from time to time, of
undivided beneficial interests in the assets of the Trust;
(e) the Indenture, dated as of March 30, 1999 the ("Indenture"), by and
between the Company and The First National Bank of Chicago, as indenture
trustee;
(f) the form of the Guarantee Agreement (the "Guarantee Agreement"), to
be entered between the Company and The First National Bank of Chicago, as
guarantee trustee (the "Guarantee Trustee");
(g) the form of the underwriting agreement to be entered among the
Trust, as issuer, the Company, as guarantor, and the underwriters to be named
therein relating to the issuance of Preferred Securities of the Trust under the
Registration Statement, as amended; and
(h) the other exhibits to the Registration Statement, as amended.
Based upon the foregoing, and subject to the qualifications and
exceptions heretofore and hereinafter set forth, we are of the opinion that:
1. With respect to the Debentures to be issued under the Indenture,
when such Debentures have been duly executed, authenticated, issued and
delivered in accordance with the provisions of such Indenture upon payment of
the consideration therefor as contemplated by the Registration Statement, as
amended, such Debentures will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their terms
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
2. With respect to the Guarantee to be issued under the Guarantee
<PAGE> 3
First Security Corporation
First Security Capital III
April 15, 1999
Page 4
Agreement, when (i) such Guarantee Agreement has been validly executed and
delivered by the Company and by the Guarantee Trustee and (ii) such Guarantee
has been duly executed, authenticated, issued and delivered in accordance with
the provisions of such Guarantee Agreement, such Guarantee will constitute a
valid and legally binding obligation of the Company, enforceable in accordance
with its terms subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles, (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
3. a. The Trust will be classified as a grantor trust for United States
federal income tax purposes and not as an association taxable as a corporation;
and
b. The Debentures will be classified as debt for United States
federal income tax purposes.
The foregoing opinions are subject to the following assumptions, exceptions,
qualifications and limitations:
a. In rendering our opinions we have assumed the genuineness of all
signatures on all documents, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals and the conformity
with original documents of all documents submitted to us as copies, the
authenticity of the originals of such copies, the due authorization, execution
and delivery of all instruments and documents by parties other than the Company
and the Trust, and that such instruments and documents are the valid, binding
and enforceable obligations of such persons.
b. We have assumed that the Registration Statement, as amended, will
be effective under the Act at the time of issuance, offering and sale of any
such Preferred Securities, Debentures and Guarantees.
c. We are members of the Bar of the State of Utah, and we render no
opinion herein as to matters involving the laws of any jurisdiction other than
the State of Utah and the federal laws of the United States of America.
d. This opinion is limited to the present laws of the States of Utah
and of the United States of America, and to the facts bearing upon this opinion
as they presently exist. We assume no obligation to revise or supplement this
opinion.
e. The opinions and conclusions set forth in paragraph 3 are based
upon the federal income tax laws of the United States, including the Internal
Revenue Code of 1986, as amended, Treasury Regulations and judicial and
administrative interpretations thereof, as they exist as of the date of this
opinion. There can be no assurance that the legal authorities upon
<PAGE> 4
First Security Corporation
First Security Capital III
April 15, 1999
Page 5
which our opinion is based will not be modified, revoked, supplemented or
otherwise changed. To the extent of any such changes, our opinion is not
applicable. Furthermore, we undertake no obligation to reexamine or in any way
revise our opinion in the light of any such changes.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement, as amended. In
addition, we hereby consent to the use of our name under the heading "Legal
Opinions" in the prospectus forming a part of the Registration Statement, as
amended.
Very truly yours,
/s/ RAY, QUINNEY & NEBEKER
-------------------------------
RAY, QUINNEY & NEBEKER
<PAGE> 1
[Letterhead of Ray, Quinney & Nebeker]
Exhibits 5(g) and 8(c)
April 15, 1999
First Security Corporation
and First Security Capital IV
79 South Main Street
Salt Lake City, Utah 84111
Re: FIRST SECURITY CORPORATION AND FIRST SECURITY CAPITAL IV
Ladies and Gentlemen:
We have acted as counsel to First Security Corporation, a Delaware
corporation (the "Company"), and as counsel to First Security Capital IV (the
"Trust"), First Security Capital II, First Security Capital III, and First
Security Capital V, each a Delaware business trust (collectively, the "Trusts"
and, together with the Company, the "Registrants"), in connection with the
Registration Statement on Form S-3 of the Registrants, filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), which relates to the issuance of (i) preferred securities
representing beneficial ownership interests in each respective Trust which
issues them (the "Preferred Securities"), (ii) unconditional and irrevocable
guarantees (the "Guarantees" and, each, a "Guarantee") of the obligations of the
Trusts under the Preferred Securities that may be issued by the Company and
(iii) junior subordinated debentures (the "Debentures") to be issued by the
Company.
In connection with this opinion, we have investigated such questions of
law, examined such corporate documents and records of the Company and the Trust,
and certificates of public officials and other documents concerning the Company
and/or the Trust, and received such information from officers and
representatives of the Company and the Trust as we have deemed necessary or
appropriate for purposes of this opinion. We have examined, among other
documents:
(a) the Certificate of Trust of the Trust, dated as of March 9, 1999
(the
<PAGE> 2
First Security Corporation
First Security Capital IV
April 15, 1999
Page 3
"Certificate"), as filed with the Secretary of State of the State of
Delaware (the "Secretary of State") on March 9, 1999;
(b) the Declaration of Trust of the Trust, dated as of March 9, 1999,
among the Company and the trustees of the Trust named therein;
(c) an executed copy of the Registration Statement, as amended,
relating to the Preferred Securities of the Trust representing preferred
undivided beneficial interests in the assets of the Trust (each, a "Preferred
Security" and collectively, the "Preferred Securities");
(d) the form of the Amended and Restated Declaration of Trust of the
Trust (the "Declaration"), to be entered among the Company, as sponsor, the
trustees of the Trust named therein, and the holders, from time to time, of
undivided beneficial interests in the assets of the Trust;
(e) the Indenture, dated as of March 30, 1999 the ("Indenture"), by and
between the Company and The First National Bank of Chicago, as indenture
trustee;
(f) the form of the Guarantee Agreement (the "Guarantee Agreement"), to
be entered between the Company and The First National Bank of Chicago, as
guarantee trustee (the "Guarantee Trustee");
(g) the form of the underwriting agreement to be entered among the
Trust, as issuer, the Company, as guarantor, and the underwriters to be named
therein relating to the issuance of Preferred Securities of the Trust under the
Registration Statement, as amended; and
(h) the other exhibits to the Registration Statement, as amended.
Based upon the foregoing, and subject to the qualifications and
exceptions heretofore and hereinafter set forth, we are of the opinion that:
1. With respect to the Debentures to be issued under the Indenture,
when such Debentures have been duly executed, authenticated, issued and
delivered in accordance with the provisions of such Indenture upon payment of
the consideration therefor as contemplated by the Registration Statement, as
amended, such Debentures will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their terms
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
2. With respect to the Guarantee to be issued under the Guarantee
<PAGE> 3
First Security Corporation
First Security Capital IV
April 15, 1999
Page 4
Agreement, when (i) such Guarantee Agreement has been validly executed and
delivered by the Company and by the Guarantee Trustee and (ii) such Guarantee
has been duly executed, authenticated, issued and delivered in accordance with
the provisions of such Guarantee Agreement, such Guarantee will constitute a
valid and legally binding obligation of the Company, enforceable in accordance
with its terms subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles, (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
3. a. The Trust will be classified as a grantor trust for United States
federal income tax purposes and not as an association taxable as a corporation;
and
b. The Debentures will be classified as debt for United States
federal income tax purposes.
The foregoing opinions are subject to the following assumptions, exceptions,
qualifications and limitations:
c. In rendering our opinions we have assumed the genuineness of all
signatures on all documents, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals and the conformity
with original documents of all documents submitted to us as copies, the
authenticity of the originals of such copies, the due authorization, execution
and delivery of all instruments and documents by parties other than the Company
and the Trust, and that such instruments and documents are the valid, binding
and enforceable obligations of such persons.
d. We have assumed that the Registration Statement, as amended, will
be effective under the Act at the time of issuance, offering and sale of any
such Preferred Securities, Debentures and Guarantees.
e. We are members of the Bar of the State of Utah, and we render no
opinion herein as to matters involving the laws of any jurisdiction other than
the State of Utah and the federal laws of the United States of America.
f. This opinion is limited to the present laws of the States of Utah
and of the United States of America, and to the facts bearing upon this opinion
as they presently exist. We assume no obligation to revise or supplement this
opinion.
g. The opinions and conclusions set forth in paragraph 3 are based
upon the federal income tax laws of the United States, including the Internal
Revenue Code of 1986, as amended, Treasury Regulations and judicial and
administrative interpretations thereof, as they exist as of the date of this
opinion. There can be no assurance that the legal authorities upon
<PAGE> 4
First Security Corporation
First Security Capital IV
April 15, 1999
Page 5
which our opinion is based will not be modified, revoked, supplemented or
otherwise changed. To the extent of any such changes, our opinion is not
applicable. Furthermore, we undertake no obligation to reexamine or in any way
revise our opinion in the light of any such changes.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement, as amended. In
addition, we hereby consent to the use of our name under the heading "Legal
Opinions" in the prospectus forming a part of the Registration Statement, as
amended.
Very truly yours,
/s/ RAY, QUINNEY & NEBEKER
-------------------------------
RAY, QUINNEY & NEBEKER
<PAGE> 1
[Letterhead of Ray Quinney & Nebeker]
Exhibits 5(h) and 8(d)
April 15, 1999
First Security Corporation
and First Security Capital V
79 South Main Street
Salt Lake City, Utah 84111
Re: FIRST SECURITY CORPORATION AND FIRST SECURITY CAPITAL V
Ladies and Gentlemen:
We have acted as counsel to First Security Corporation, a
Delaware corporation (the "Company"), and as counsel to First Security Capital V
(the "Trust"), First Security Capital II, First Security Capital III, and First
Security Capital IV, each a Delaware business trust (collectively, the "Trusts"
and, together with the Company, the "Registrants"), in connection with the
Registration Statement on Form S-3 of the Registrants, filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), which relates to the issuance of (i) preferred securities
representing beneficial ownership interests in each respective Trust which
issues them (the "Preferred Securities"), (ii) unconditional and irrevocable
guarantees (the "Guarantees" and, each, a "Guarantee") of the obligations of the
Trusts under the Preferred Securities that may be issued by the Company and
(iii) junior subordinated debentures (the "Debentures") to be issued by the
Company.
In connection with this opinion, we have investigated such questions
of law, examined such corporate documents and records of the Company and the
Trust, and certificates of public officials and other documents concerning the
Company and/or the Trust, and received such information from officers and
representatives of the Company and the Trust as we have deemed necessary or
appropriate for purposes of this opinion. We have examined, among other
documents:
(a) the Certificate of Trust of the Trust, dated as of March 9, 1999
(the
<PAGE> 2
First Security Corporation
First Security Capital V
April 15, 1999
Page 3
"Certificate"), as filed with the Secretary of State of the State of
Delaware (the "Secretary of State") on March 9, 1999;
(b) the Declaration of Trust of the Trust, dated as of March 9, 1999,
among the Company and the trustees of the Trust named therein;
(c) an executed copy of the Registration Statement, as amended,
relating to the Preferred Securities of the Trust representing preferred
undivided beneficial interests in the assets of the Trust (each, a "Preferred
Security" and collectively, the "Preferred Securities");
(d) the form of the Amended and Restated Declaration of Trust of the
Trust (the "Declaration"), to be entered among the Company, as sponsor, the
trustees of the Trust named therein, and the holders, from time to time, of
undivided beneficial interests in the assets of the Trust;
(e) the Indenture, dated as of March 30, 1999 the ("Indenture"), by
and between the Company and The First National Bank of Chicago, as indenture
trustee;
(f) the form of the Guarantee Agreement (the "Guarantee Agreement"),
to be entered between the Company and The First National Bank of Chicago, as
guarantee trustee (the "Guarantee Trustee");
(g) the form of the underwriting agreement to be entered among the
Trust, as issuer, the Company, as guarantor, and the underwriters to be named
therein relating to the issuance of Preferred Securities of the Trust under the
Registration Statement, as amended; and
(h) the other exhibits to the Registration Statement, as amended.
Based upon the foregoing, and subject to the qualifications and
exceptions heretofore and hereinafter set forth, we are of the opinion that:
1. With respect to the Debentures to be issued under the Indenture,
when such Debentures have been duly executed, authenticated, issued and
delivered in accordance with the provisions of such Indenture upon payment of
the consideration therefor as contemplated by the Registration Statement, as
amended, such Debentures will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their terms
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
2. With respect to the Guarantee to be issued under the Guarantee
<PAGE> 3
First Security Corporation
First Security Capital V
April 15, 1999
Page 4
Agreement, when (i) such Guarantee Agreement has been validly executed and
delivered by the Company and by the Guarantee Trustee and (ii) such Guarantee
has been duly executed, authenticated, issued and delivered in accordance with
the provisions of such Guarantee Agreement, such Guarantee will constitute a
valid and legally binding obligation of the Company, enforceable in accordance
with its terms subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles, (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
3. a. The Trust will be classified as a grantor trust for United
States federal income tax purposes and not as an association taxable as a
corporation; and
b. The Debentures will be classified as debt for United States
federal income tax purposes.
The foregoing opinions are subject to the following assumptions, exceptions,
qualifications and limitations:
c. In rendering our opinions we have assumed the genuineness of all
signatures on all documents, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals and the conformity
with original documents of all documents submitted to us as copies, the
authenticity of the originals of such copies, the due authorization, execution
and delivery of all instruments and documents by parties other than the Company
and the Trust, and that such instruments and documents are the valid, binding
and enforceable obligations of such persons.
d. We have assumed that the Registration Statement, as amended,
will be effective under the Act at the time of issuance, offering and sale of
any such Preferred Securities, Debentures and Guarantees.
e. We are members of the Bar of the State of Utah, and we render no
opinion herein as to matters involving the laws of any jurisdiction other than
the State of Utah and the federal laws of the United States of America.
f. This opinion is limited to the present laws of the States of
Utah and of the United States of America, and to the facts bearing upon this
opinion as they presently exist. We assume no obligation to revise or supplement
this opinion.
g. The opinions and conclusions set forth in paragraph 3 are based
upon the federal income tax laws of the United States, including the Internal
Revenue Code of 1986, as amended, Treasury Regulations and judicial and
administrative interpretations thereof, as they exist as of the date of this
opinion. There can be no assurance that the legal authorities upon
<PAGE> 4
First Security Corporation
First Security Capital V
April 15, 1999
Page 5
which our opinion is based will not be modified, revoked, supplemented or
otherwise changed. To the extent of any such changes, our opinion is not
applicable. Furthermore, we undertake no obligation to reexamine or in any way
revise our opinion in the light of any such changes.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement, as amended. In
addition, we hereby consent to the use of our name under the heading "Legal
Opinions" in the prospectus forming a part of the Registration Statement, as
amended.
Very truly yours,
/s/ RAY, QUINNEY & NEBEKER
-------------------------------
RAY, QUINNEY & NEBEKER
<PAGE> 1
EXHIBIT 12.A - STATEMENT RE COMPUTATION OF RATIOS
FIRST SECURITY CORPORATION
Computation of the Ratio of Earnings to Fixed Charges
(in thousands)
<TABLE>
<CAPTION>
------- For the years ended December 31, ---------
1998 1997 1996 1995 1994 1993
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Net Income........................................ 247,680 215,274 184,472 124,631 143,702 115,260
Total Provision (Benefit) For Income Taxes........ 135,398 115,532 103,516 72,336 81,098 59,021
Income before income tax provision (benefit)...... 383,078 330,806 287,988 196,967 224,800 174,281
Fixed charges, excluding interest on deposits..... 313,075 234,783 158,539 160,381 110,117 47,815
Fixed charges, including interest on deposits..... 716,961 587,439 485,328 469,812 322,035 246,816
Adjusted earnings, excluding interest on deposits. 696,153 565,589 446,527 357,348 334,917 222,096
Adjusted earnings, including interest on deposits. 1,100,039 918,245 773,316 666,779 546,835 421,097
Fixed Charges:
Total Interest Expense............................ 716,961 587,439 485,328 469,812 322,035 246,816
Interest on deposits.............................. 403,886 352,656 326,789 309,431 211,918 199,001
Fixed charges, excluding interest on deposits..... 313,075 234,783 158,539 160,381 110,117 47,815
Fixed charges, including interest on deposits..... 716,961 587,439 485,328 469,812 322,035 246,816
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits.................... 2.22 2.41 2.82 2.23 3.04 4.64
Including interest on deposits.................... 1.53 1.56 1.59 1.42 1.70 1.71
</TABLE>
Note: Earnings have been restated to reflect the retroactive adoption of SFAS
109, "Accounting for Income Taxes" and the November 1993
pooling-of-interests merger with First National Financial Corporation.
<PAGE> 1
EXHIBIT 12.B - STATEMENT RE COMPUTATION OF RATIOS
FIRST SECURITY CORPORATION
Computation of the Ratio of Earnings to Combined Fixed Charges and Preferred
Stock Dividends
(in thousands)
<TABLE>
<CAPTION>
------- For the years ended December 31, ---------
1998 1997 1996 1995 1994 1993
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Net Income........................................ 247,680 215,274 184,472 124,631 143,702 115,260
Total Provision (Benefit) For Income Taxes........ 135,398 115,532 103,516 72,336 81,098 59,021
Income before income tax provision (benefit)...... 383,078 330,806 287,988 196,967 224,800 174,281
Fixed charges, excluding interest on deposits..... 313,113 234,824 158,584 160,429 110,171 47,874
Fixed charges, including interest on deposits..... 716,999 587,480 485,373 469,860 322,089 246,875
Adjusted earnings, excluding interest on deposits. 696,191 565,630 446,572 357,396 334,971 222,155
Adjusted earnings, including interest on deposits. 1,100,077 918,286 773,361 666,827 546,889 421,156
Fixed Charges:
Total Interest Expense............................ 716,961 587,439 485,328 469,812 322,035 246,816
Interest on deposits.............................. 403,886 352,656 326,789 309,431 211,918 199,001
Dividend requirement of preferred stock........... 28 30 33 35 39 43
Adjustment to compute pretax preferred dividend... 10 11 12 13 15 16
Fixed charges, excluding interest on deposits..... 313,113 234,824 158,584 160,429 110,171 47,874
Fixed charges, including interest on deposits..... 716,999 587,480 485,373 469,860 322,089 246,875
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits.................... 2.22 2.41 2.82 2.23 3.04 4.64
Including interest on deposits.................... 1.53 1.56 1.59 1.42 1.70 1.71
</TABLE>
<PAGE> 1
Exhibit 23(i)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Pre-Effective Amendment No.
1 to the Registration Statement No. 333-75271 of First Security Corporation on
Form S-3 of our report dated February 24, 1999 appearing in the Annual Report on
Form 10-K of First Security Corporation for the year ended December 31, 1998 and
to the reference to us under the heading "Experts" in the Prospectus, which is
part of this Registration Statement.
/s/ Deloitte & Touche LLP
- -------------------------
DELOITTE & TOUCHE LLP
Salt Lake City, Utah
April 15, 1999
<PAGE> 1
Exhibit 25(a)
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 obligors as specified in their trust agreements)
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
Guarantees of Capital Securities issued by First Security Capital Trust II,
First Security Capital Trust III, First Security Capital Trust IV,
and First Security Capital Trust V
(Title of Indenture Securities)
<PAGE> 2
Item 1. General Information. Furnish the following information as to
the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C..
(b) Whether it is authorized to exercise corporate trust
powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an affiliate
of the trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part of
this Statement of Eligibility.
1. A copy of the articles of association of the trustee now
in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE> 3
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 5th day of March,
1999.
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
By /s/ SANDRA L. CARUBA
-----------------------------------
Sandra L. Caruba
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 5, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the Indenture by and between First
Security Corporation and The First National Bank of Chicago, as Trustee, 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/ SANDRA L. CARUBA
-----------------------------------
Sandra L. Caruba
Vice President
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Ste 0460
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031
Page RC-1
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1998
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>
Dollar Amounts in thousands C400
----
RCFD BIL MIL THOU
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1) ................ 0081 5,585,982 1.a
b. Interest-bearing balances(2) ......................................... 0071 4,623,842 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) ............ 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D). ........ 1773 11,181,405 2.b
3. Federal funds sold and securities purchased under agreements to resell .. 1350 9,853,544 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
----
RC-C) ................................................................... 2122 31,155,998 4.a
b. LESS: Allowance for loan and lease losses ............................ 3123 411,963 4.b
c. LESS: Allocated transfer risk reserve ................................ 3128 3,884 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
----
reserve (item 4.a minus 4.b and 4.c) ................................. 2125 30,740,151 4.d
5. Trading assets (from Schedule RD-D) ..................................... 3545 7,635,778 5.
6. Premises and fixed assets (including capitalized leases) ................ 2145 739,925 6.
7. Other real estate owned (from Schedule RC-M) ............................ 2150 4,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) .......................................... 2130 202,359 8.
9. Customers' liability to this bank on acceptances outstanding ............ 2155 269,516 9.
10. Intangible assets (from Schedule RC-M) .................................. 2143 291,665 10.
11. Other assets (from Schedule RC-F) ....................................... 2160 3,071,912 11.
12. Total assets (sum of items 1 through 11) ................................ 2170 74,200,906 12.
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Ste 0460
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031
Page RC-2
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1) .......................................... 2200 22,524,140 13.a
(1) Noninterest-bearing(1) ........................................... 6631 10,141,937 13.a1
(2) Interest-bearing ................................................. 6636 12,382,203 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II) ................................... 2200 19,691,237 13.b
(1) Noninterest bearing .............................................. 6631 408,126 13.b1
(2) Interest-bearing ................................................. 6636 19,283,111 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: .......................................................... RCFD 2800 9,113,686 14
15. a. Demand notes issued to the U.S. Treasury ............................. RCON 2840 120,599 15.a
b. Trading Liabilities(from Schedule RC-D) .............................. RCFD 3548 6,797,927 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less ........................... 2332 5,385,355 16.a
b. With original maturity of more than one year ......................... A547 327,126 16.b
c. With original maturity of more than three years ...................... A548 316,411 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding ................. 2920 269,516 18.
19. Subordinated notes and debentures ....................................... 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G) .................................. 2930 2,137,443 20.
21. Total liabilities (sum of items 13 through 20) .......................... 2948 69,083,440 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ........................... 3838 0 23.
24. Common stock ............................................................ 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) ................ 3839 3,201,435 25.
26. a. Undivided profits and capital reserves ............................... 3632 1,695,446 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities ........................................................... 8434 6,349 26.b
27. Cumulative foreign currency translation adjustments ..................... 3284 13,378 27.
28. Total equity capital (sum of items 23 through 27) ....................... 3210 5,117,466 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) ................................... 3300 74,200,906 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 Number
any date during 1996 .....................RCFD 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.
<PAGE> 1
Exhibit 25(b)
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 CAPTIAL II
(Exact name of obligors as specified in their trust agreements)
Delaware To be applied for
(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)
Capital Securities
(Title of Indenture Securities)
<PAGE> 2
Item 1. General Information. Furnish the following information as to
the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C..
(b) Whether it is authorized to exercise corporate trust
powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an affiliate
of the trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part of
this Statement of Eligibility.
1. A copy of the articles of association of the trustee now
in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE> 3
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 5th day of March,
1999.
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
By /s/ SANDRA L. CARUBA
-----------------------------------
Sandra L. Caruba
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 5, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the Amended and Restated Declaration of
Trust of First Security Capital II, the undersigned, The First National Bank of
Chicago, as Trustee, 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/ SANDRA L. CARUBA
-----------------------------------
Sandra L. Caruba
Vice President
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Ste 0460
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031
Page RC-1
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1998
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>
Dollar Amounts in thousands C400
----
RCFD BIL MIL THOU
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1) ................ 0081 5,585,982 1.a
b. Interest-bearing balances(2) ......................................... 0071 4,623,842 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) ............ 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D). ........ 1773 11,181,405 2.b
3. Federal funds sold and securities purchased under agreements to resell .. 1350 9,853,544 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
----
RC-C) ................................................................... 2122 31,155,998 4.a
b. LESS: Allowance for loan and lease losses ............................ 3123 411,963 4.b
c. LESS: Allocated transfer risk reserve ................................ 3128 3,884 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
----
reserve (item 4.a minus 4.b and 4.c) ................................. 2125 30,740,151 4.d
5. Trading assets (from Schedule RD-D) ..................................... 3545 7,635,778 5.
6. Premises and fixed assets (including capitalized leases) ................ 2145 739,925 6.
7. Other real estate owned (from Schedule RC-M) ............................ 2150 4,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) .......................................... 2130 202,359 8.
9. Customers' liability to this bank on acceptances outstanding ............ 2155 269,516 9.
10. Intangible assets (from Schedule RC-M) .................................. 2143 291,665 10.
11. Other assets (from Schedule RC-F) ....................................... 2160 3,071,912 11.
12. Total assets (sum of items 1 through 11) ................................ 2170 74,200,906 12.
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Ste 0460
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031
Page RC-2
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1) .......................................... 2200 22,524,140 13.a
(1) Noninterest-bearing(1) ........................................... 6631 10,141,937 13.a1
(2) Interest-bearing ................................................. 6636 12,382,203 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II) ................................... 2200 19,691,237 13.b
(1) Noninterest bearing .............................................. 6631 408,126 13.b1
(2) Interest-bearing ................................................. 6636 19,283,111 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: .......................................................... RCFD 2800 9,113,686 14
15. a. Demand notes issued to the U.S. Treasury ............................. RCON 2840 120,599 15.a
b. Trading Liabilities(from Schedule RC-D) .............................. RCFD 3548 6,797,927 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less ........................... 2332 5,385,355 16.a
b. With original maturity of more than one year ......................... A547 327,126 16.b
c. With original maturity of more than three years ...................... A548 316,411 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding ................. 2920 269,516 18.
19. Subordinated notes and debentures ....................................... 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G) .................................. 2930 2,137,443 20.
21. Total liabilities (sum of items 13 through 20) .......................... 2948 69,083,440 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ........................... 3838 0 23.
24. Common stock ............................................................ 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) ................ 3839 3,201,435 25.
26. a. Undivided profits and capital reserves ............................... 3632 1,695,446 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities ........................................................... 8434 6,349 26.b
27. Cumulative foreign currency translation adjustments ..................... 3284 13,378 27.
28. Total equity capital (sum of items 23 through 27) ....................... 3210 5,117,466 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) ................................... 3300 74,200,906 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 Number
any date during 1996 .....................RCFD 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.
<PAGE> 1
Exhibit 25(c)
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 CAPTIAL III
(Exact name of obligors as specified in their trust agreements)
Delaware To be applied for
(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)
Capital Securities
(Title of Indenture Securities)
<PAGE> 2
Item 1. General Information. Furnish the following information as to
the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C..
(b) Whether it is authorized to exercise corporate trust
powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an affiliate
of the trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part of
this Statement of Eligibility.
1. A copy of the articles of association of the trustee now
in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE> 3
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 5th day of March,
1999.
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
By /s/ SANDRA L. CARUBA
-----------------------------------
Sandra L. Caruba
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 5, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the Amended and Restated Declaration of
Trust of First Security Capital III, the undersigned, The First National Bank of
Chicago, as Trustee, 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/ SANDRA L. CARUBA
-----------------------------------
Sandra L. Caruba
Vice President
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Ste 0460
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031
Page RC-1
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1998
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>
Dollar Amounts in thousands C400
----
RCFD BIL MIL THOU
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1) ................ 0081 5,585,982 1.a
b. Interest-bearing balances(2) ......................................... 0071 4,623,842 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) ............ 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D). ........ 1773 11,181,405 2.b
3. Federal funds sold and securities purchased under agreements to resell .. 1350 9,853,544 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
----
RC-C) ................................................................... 2122 31,155,998 4.a
b. LESS: Allowance for loan and lease losses ............................ 3123 411,963 4.b
c. LESS: Allocated transfer risk reserve ................................ 3128 3,884 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
----
reserve (item 4.a minus 4.b and 4.c) ................................. 2125 30,740,151 4.d
5. Trading assets (from Schedule RD-D) ..................................... 3545 7,635,778 5.
6. Premises and fixed assets (including capitalized leases) ................ 2145 739,925 6.
7. Other real estate owned (from Schedule RC-M) ............................ 2150 4,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) .......................................... 2130 202,359 8.
9. Customers' liability to this bank on acceptances outstanding ............ 2155 269,516 9.
10. Intangible assets (from Schedule RC-M) .................................. 2143 291,665 10.
11. Other assets (from Schedule RC-F) ....................................... 2160 3,071,912 11.
12. Total assets (sum of items 1 through 11) ................................ 2170 74,200,906 12.
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Ste 0460
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031
Page RC-2
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1) .......................................... 2200 22,524,140 13.a
(1) Noninterest-bearing(1) ........................................... 6631 10,141,937 13.a1
(2) Interest-bearing ................................................. 6636 12,382,203 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II) ................................... 2200 19,691,237 13.b
(1) Noninterest bearing .............................................. 6631 408,126 13.b1
(2) Interest-bearing ................................................. 6636 19,283,111 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: .......................................................... RCFD 2800 9,113,686 14
15. a. Demand notes issued to the U.S. Treasury ............................. RCON 2840 120,599 15.a
b. Trading Liabilities(from Schedule RC-D) .............................. RCFD 3548 6,797,927 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less ........................... 2332 5,385,355 16.a
b. With original maturity of more than one year ......................... A547 327,126 16.b
c. With original maturity of more than three years ...................... A548 316,411 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding ................. 2920 269,516 18.
19. Subordinated notes and debentures ....................................... 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G) .................................. 2930 2,137,443 20.
21. Total liabilities (sum of items 13 through 20) .......................... 2948 69,083,440 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ........................... 3838 0 23.
24. Common stock ............................................................ 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) ................ 3839 3,201,435 25.
26. a. Undivided profits and capital reserves ............................... 3632 1,695,446 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities ........................................................... 8434 6,349 26.b
27. Cumulative foreign currency translation adjustments ..................... 3284 13,378 27.
28. Total equity capital (sum of items 23 through 27) ....................... 3210 5,117,466 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) ................................... 3300 74,200,906 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 Number
any date during 1996 .....................RCFD 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.
<PAGE> 1
Exhibit 25(d)
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 CAPTIAL IV
(Exact name of obligors as specified in their trust agreements)
Delaware To be applied for
(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)
Capital Securities
(Title of Indenture Securities)
<PAGE> 2
Item 1. General Information. Furnish the following information as to
the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C..
(b) Whether it is authorized to exercise corporate trust
powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an affiliate
of the trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part of
this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE> 3
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 5th day of March,
1999.
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
By /s/ SANDRA L. CARUBA
-----------------------------------
Sandra L. Caruba
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 5, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the Amended and Restated Declaration of
Trust of First Security Capital IV, the undersigned, The First National Bank of
Chicago, as Trustee, 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/ SANDRA L. CARUBA
-----------------------------------
Sandra L. Caruba
Vice President
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Ste 0460
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031
Page RC-1
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1998
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>
Dollar Amounts in thousands C400
----
RCFD BIL MIL THOU
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1) ................ 0081 5,585,982 1.a
b. Interest-bearing balances(2) ......................................... 0071 4,623,842 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) ............ 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D). ........ 1773 11,181,405 2.b
3. Federal funds sold and securities purchased under agreements to resell .. 1350 9,853,544 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
----
RC-C) ................................................................... 2122 31,155,998 4.a
b. LESS: Allowance for loan and lease losses ............................ 3123 411,963 4.b
c. LESS: Allocated transfer risk reserve ................................ 3128 3,884 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
----
reserve (item 4.a minus 4.b and 4.c) ................................. 2125 30,740,151 4.d
5. Trading assets (from Schedule RD-D) ..................................... 3545 7,635,778 5.
6. Premises and fixed assets (including capitalized leases) ................ 2145 739,925 6.
7. Other real estate owned (from Schedule RC-M) ............................ 2150 4,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) .......................................... 2130 202,359 8.
9. Customers' liability to this bank on acceptances outstanding ............ 2155 269,516 9.
10. Intangible assets (from Schedule RC-M) .................................. 2143 291,665 10.
11. Other assets (from Schedule RC-F) ....................................... 2160 3,071,912 11.
12. Total assets (sum of items 1 through 11) ................................ 2170 74,200,906 12.
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Ste 0460
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031
Page RC-2
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1) .......................................... 2200 22,524,140 13.a
(1) Noninterest-bearing(1) ........................................... 6631 10,141,937 13.a1
(2) Interest-bearing ................................................. 6636 12,382,203 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II) ................................... 2200 19,691,237 13.b
(1) Noninterest bearing .............................................. 6631 408,126 13.b1
(2) Interest-bearing ................................................. 6636 19,283,111 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: .......................................................... RCFD 2800 9,113,686 14
15. a. Demand notes issued to the U.S. Treasury ............................. RCON 2840 120,599 15.a
b. Trading Liabilities(from Schedule RC-D) .............................. RCFD 3548 6,797,927 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less ........................... 2332 5,385,355 16.a
b. With original maturity of more than one year ......................... A547 327,126 16.b
c. With original maturity of more than three years ...................... A548 316,411 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding ................. 2920 269,516 18.
19. Subordinated notes and debentures ....................................... 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G) .................................. 2930 2,137,443 20.
21. Total liabilities (sum of items 13 through 20) .......................... 2948 69,083,440 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ........................... 3838 0 23.
24. Common stock ............................................................ 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) ................ 3839 3,201,435 25.
26. a. Undivided profits and capital reserves ............................... 3632 1,695,446 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities ........................................................... 8434 6,349 26.b
27. Cumulative foreign currency translation adjustments ..................... 3284 13,378 27.
28. Total equity capital (sum of items 23 through 27) ....................... 3210 5,117,466 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) ................................... 3300 74,200,906 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 Number
any date during 1996 .....................RCFD 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.
<PAGE> 1
Exhibit 25(e)
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 CAPTIAL V
(Exact name of obligors as specified in their trust agreements)
Delaware To be applied for
(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)
Capital Securities
(Title of Indenture Securities)
<PAGE> 2
Item 1. General Information. Furnish the following information as to
the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C..
(b) Whether it is authorized to exercise corporate trust
powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an affiliate
of the trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part of
this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE> 3
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 5th day of March,
1999.
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
By /s/ SANDRA L. CARUBA
-----------------------------------
Sandra L. Caruba
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25 to the Registration Statement on Form S-3 of U S
WEST Capital Funding, Inc., filed with the Securities and Exchange Commission on
May 6, 1998 (Registration No. 333-51907-01).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 5, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the Amended and Restated Declaration of
Trust of First Security Capital V, the undersigned, The First National Bank of
Chicago, as Trustee, 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/ SANDRA L. CARUBA
-----------------------------------
Sandra L. Caruba
Vice President
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Ste 0460
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031
Page RC-1
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1998
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>
Dollar Amounts in thousands C400
----
RCFD BIL MIL THOU
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1) ................ 0081 5,585,982 1.a
b. Interest-bearing balances(2) ......................................... 0071 4,623,842 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) ............ 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D). ........ 1773 11,181,405 2.b
3. Federal funds sold and securities purchased under agreements to resell .. 1350 9,853,544 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
----
RC-C) ................................................................... 2122 31,155,998 4.a
b. LESS: Allowance for loan and lease losses ............................ 3123 411,963 4.b
c. LESS: Allocated transfer risk reserve ................................ 3128 3,884 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
----
reserve (item 4.a minus 4.b and 4.c) ................................. 2125 30,740,151 4.d
5. Trading assets (from Schedule RD-D) ..................................... 3545 7,635,778 5.
6. Premises and fixed assets (including capitalized leases) ................ 2145 739,925 6.
7. Other real estate owned (from Schedule RC-M) ............................ 2150 4,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) .......................................... 2130 202,359 8.
9. Customers' liability to this bank on acceptances outstanding ............ 2155 269,516 9.
10. Intangible assets (from Schedule RC-M) .................................. 2143 291,665 10.
11. Other assets (from Schedule RC-F) ....................................... 2160 3,071,912 11.
12. Total assets (sum of items 1 through 11) ................................ 2170 74,200,906 12.
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Ste 0460
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031
Page RC-2
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1) .......................................... 2200 22,524,140 13.a
(1) Noninterest-bearing(1) ........................................... 6631 10,141,937 13.a1
(2) Interest-bearing ................................................. 6636 12,382,203 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II) ................................... 2200 19,691,237 13.b
(1) Noninterest bearing .............................................. 6631 408,126 13.b1
(2) Interest-bearing ................................................. 6636 19,283,111 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: .......................................................... RCFD 2800 9,113,686 14
15. a. Demand notes issued to the U.S. Treasury ............................. RCON 2840 120,599 15.a
b. Trading Liabilities(from Schedule RC-D) .............................. RCFD 3548 6,797,927 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less ........................... 2332 5,385,355 16.a
b. With original maturity of more than one year ......................... A547 327,126 16.b
c. With original maturity of more than three years ...................... A548 316,411 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding ................. 2920 269,516 18.
19. Subordinated notes and debentures ....................................... 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G) .................................. 2930 2,137,443 20.
21. Total liabilities (sum of items 13 through 20) .......................... 2948 69,083,440 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ........................... 3838 0 23.
24. Common stock ............................................................ 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) ................ 3839 3,201,435 25.
26. a. Undivided profits and capital reserves ............................... 3632 1,695,446 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities ........................................................... 8434 6,349 26.b
27. Cumulative foreign currency translation adjustments ..................... 3284 13,378 27.
28. Total equity capital (sum of items 23 through 27) ....................... 3210 5,117,466 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) ................................... 3300 74,200,906 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 Number
any date during 1996 .....................RCFD 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.
