<PAGE>
As filed with the Securities and Exchange Commission on January 22, 1997
Registration No. 333-17003
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------------------
AMENDMENT No. 1
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
NATIONAL CONSUMER COOPERATIVE BANK
(Exact name of registrant as specified in its charter)
United States of America 52-1157795
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1401 Eye Street N.W., Suite 700
Washington, DC 20005
(202) 336-7700
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
----------------------
Charles E. Snyder
National Consumer Cooperative Bank
1401 Eye Street N.W., Suite 700
Washington, DC 20005
(202) 336-7700
(Name, address, including zip code, and telephone number,
including area code, of agent for service of process)
----------------------
Copies to:
Martin Flynn, Esq. Daniel M. Rossner, Esq.
Shea & Gardner Brown & Wood LLP
1800 Massachusetts Ave., N.W. One World Trade Center
Washington, DC 20036 New York, NY 10048
----------------------
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
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. |_|
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Amount to be Offering Price Aggregate Registration
Securities to be Registered Registered (1) Per Unit(2) Offering Price(2)(3) Fee(4)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities.................. $100,000,000 100% $100,000,000 $30,303.03
========================================================================================================================
</TABLE>
(1) Or, if Debt Securities are to be issued with a principal amount denominated
in a foreign currency, such greater principal amount as shall result in an
aggregate initial offering price equivalent to $100,000,000 at the time of
initial offering, or if at an original issue discount, such greater
principal amount as shall result in proceeds to the registrant of
$100,000,000.
(2) Estimated solely for purpose of calculating the registration fee.
(3) Exclusive of accrued interest, if any.
(4) $303.03 of which was previously paid.
<PAGE>
National Consumer Cooperative Bank
(doing business as National Cooperative Bank)
Debt Securities
-----------------
National Consumer Cooperative Bank ("NCB") may from time to time offer its
debt securities (the "Debt Securities") in one or more series at an aggregate
initial offering price not to exceed $100,000,000 or its equivalent in any
other currency or composite currency. The Debt Securities may be offered as
separate series in amounts, at prices and on terms to be determined at the
time of the offering. The accompanying Prospectus Supplement sets forth with
regard to the Debt Securities in respect of which this Prospectus is being
delivered the title, aggregate principal amount, denominations (which may be
in United States dollars, in any other currency or in a composite currency),
maturity date, interest rate or rates, if any (which may be fixed or
variable), and time of payment of any interest, any terms for redemption at
the option of NCB or the holder, any terms for sinking fund payments, any
listing on a securities exchange, the initial public offering or purchase
price and any other terms in connection with the offering and sale of such
series of Debt Securities.
The Debt Securities will be unsecured. Unless otherwise specified in a
Prospectus Supplement, the Debt Securities will rank equally with all other
unsecured and unsubordinated indebtedness of NCB.
The Prospectus Supplement may contain information concerning certain United
States Federal income tax considerations applicable to the Debt Securities
offered therein.
The Debt Securities are not guaranteed by the United States and shall not
constitute a debt or obligation of the United States or any agency or
instrumentality thereof.
The Debt Securities may be sold by NCB directly or through agents,
underwriters or dealers, as designated from time to time or through a
combination of such methods. Such agents, underwriters or dealers may include
Goldman, Sachs & Co. and Morgan Stanley & Co. Incorporated or a group of agents,
underwriters or dealers represented by firms including Goldman, Sachs & Co. and
Morgan Stanley & Co. Incorporated. If agents of NCB or any dealers or
underwriters are involved in the sale of the Debt Securities in respect of which
this Prospectus is being delivered, the names of such agents, dealers or
underwriters and any applicable commissions or discounts will be set forth in or
may be calculated from the Prospectus Supplement with respect to such Debt
Securities. See "Plan of Distribution".
-----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR THE ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------------
Goldman, Sachs & Co. Morgan Stanley & Co.
Incorporated
-----------------
The date of this Prospectus is January , 1997.
<PAGE>
AVAILABLE INFORMATION
NCB is subject to certain information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports with the Securities and Exchange Commission (the
"Commission"). Reports filed by NCB can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth Street
N.W., Washington, D.C. 20549, and at the following Regional Offices of the
Commission: Midwest Regional Office, Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511 and Northeast Regional Office, 7 World
Trade Center, 13th Floor, New York, New York 10048. Copies of such material can
be obtained from the Public Reference Section of the Commission at 450 Fifth
Street N.W., Washington, D.C. 20549 at prescribed rates. The Commission
maintains a Web site (http://www.sec.gov) that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission.
NCB has filed with the Commission a registration statement on Form S-3
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Securities offered hereby (the "Registration Statement"). This
Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. Reference is made to the
Registration Statement and to the exhibits relating thereto for further
information with respect to NCB and the Securities offered hereby.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed by NCB with the Commission and are
incorporated herein by reference: (i) NCB's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995 (as filed on April 1, 1996); (ii) NCB's
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996, June 30,
1996 and September 30, 1996; and (iii) NCB's Current Report on Form 8-K
dated November 27, 1996.
All documents filed by NCB with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
termination of the offering of the Debt Securities shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein,
modifies or supersedes such statement. Any statement or document so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
When used in this Prospectus, any related Prospectus Supplement or any
document incorporated herein and therein by reference, the words "believes",
"anticipates", "expects" and similar expressions are intended to identify
forward-looking statements. Such statements are subject to a number or risks and
uncertainties that could cause actual results to differ materially from those
projected, including: competition within each of NCB's businesses, the effects
of international, national and regional economic conditions, the availability of
capital and other risks described from time to time in NCB's filings with the
Commission. Given these uncertainties, prospective investors are cautioned not
to place undue reliance on such statements. NCB also undertakes no obligation to
publicly release the result of any revisions to these forward-looking statements
that may be made to reflect any future events or circumstances.
NCB will furnish without charge to each person to whom this Prospectus is
delivered, upon request, a copy of any and all of the documents described above
other than exhibits to such documents
2
<PAGE>
which are not specifically incorporated by reference in such documents. Written
requests should be mailed to National Consumer Cooperative Bank, 1401 Eye
Street N.W., Suite 700, Washington, D.C. 20005 Attention: Richard L. Reed.
Telephone requests should be directed to (202) 336-7700.
NATIONAL CONSUMER COOPERATIVE BANK
General
NCB, which does business as the National Cooperative Bank, is a financial
institution organized under the laws of the United States. NCB provides
financial and technical assistance to eligible cooperative enterprises or
enterprises controlled by eligible cooperatives. A cooperative enterprise is an
organization which is owned by its members and which is engaged in producing or
furnishing goods, services, or facilities for the benefit of its members or
voting stockholders who are the ultimate consumers or primary producers of such
goods, services, or facilities. NCB is structured as a cooperative institution
whose voting stock can be owned only by its patrons or those eligible to become
its patrons.
In the legislation chartering NCB (the National Consumer Cooperative Bank
Act or the "NCCBA"), Congress stated its finding that cooperatives have proven
to be an effective means of minimizing the impact of inflation and economic
hardship on members/owners by narrowing producer-to-consumer margins and price
spreads, broadening ownership and control of economic organizations to a larger
base of consumers, raising the quality of goods and services available in the
marketplace and strengthening the nation's economy as a whole. To further the
development of cooperative businesses, the Congress specifically directed NCB
(1) to encourage the development of new and existing cooperatives eligible for
its assistance by providing specialized credit and technical assistance; (2) to
maintain broad-based control of NCB by its voting shareholders; (3) to encourage
a broad-based ownership, control and active participation by members in eligible
cooperatives; (4) to assist in improving the quality and availability of goods
and services to consumers; and (5) to encourage ownership of its equity
securities by cooperatives and others.
NCB has attempted to fulfill its statutory obligations in two fashions.
First, NCB makes loans and offers other financing arrangements which afford
cooperative businesses substantially the same financing opportunities currently
available for traditional enterprises. Second, NCB provides financial and other
assistance to the NCB Development Corporation, a non-profit corporation without
capital stock organized in 1982 which makes loans and provides assistance to
developmental cooperatives.
The NCCBA was passed on August 20, 1978, and NCB commenced lending
operations on March 21, 1980. In 1981, Congress amended the NCCBA to convert the
Class A Preferred Stock of NCB previously held by the United States to Class A
Notes of NCB (the "Class A Notes") as of December 31, 1981 (the "Final
Government Equity Redemption Date"). Since the Final Government Equity
Redemption Date, NCB's capital stock, except for three shares of non-voting
Class D stock, has been owned exclusively by cooperatives. NCB maintains its
executive offices at 1401 Eye Street N.W., Washington, D.C. 20005. The telephone
number of its executive offices is (202) 336-7700. NCB also maintains regional
offices in Minneapolis, New York, Anchorage, and San Francisco as well as a
federally chartered savings bank in Ohio.
Loan Requirements, Restrictions and Policies
Eligibility Requirements. Cooperatives and legally chartered entities
primarily owned and controlled by cooperatives are eligible to borrow from NCB
if they are operated on a cooperative basis and are engaged in producing or
furnishing goods, services or facilities primarily for the benefit of their
members or voting stockholders who are the ultimate consumers of such goods,
services or facilities. In addition, to be eligible to borrow from NCB, the
borrower must, among other things, (1) be controlled by its members or voting
stockholders on a democratic basis; (2) agree not to pay dividends on voting
stock or membership capital in excess of such percentage per annum as may be
approved by NCB; (3) provide that its net savings shall be allocated or
distributed to all members or patrons, in proportion to their patronage, or
retain such savings for the actual or potential expansion of its services or the
3
<PAGE>
reduction of its charges to the patrons, and (4) make membership available on a
voluntary basis, without any social, political, racial or religious
discrimination and without any discrimination on the basis of age, sex, or
marital status to all persons who can make use of its services and are willing
to accept the responsibilities of membership. NCB may also purchase obligations
issued by members of eligible cooperatives. In addition, organizations applying
for loans must comply with other technical requirements imposed by NCB.
Lending Authorities. The Board of Directors of NCB established its policies
governing its lending operations in compliance with the NCCBA. The policies
adopted by the Board are carried out by the management of NCB pursuant to
written loan policies adopted by the Board. The management in turn adopts and
implements guidelines and procedures consistent with stated Board directives.
Lending policies and guidelines are reviewed regularly by the Board of Directors
and management to make needed changes and amendments.
The management of NCB may approve individual loan amounts of up to 75% of
the single borrower lending limit which is equal to 15% of NCB's capital (using
the definition of capital for national banks as set forth by the Office of the
Comptroller of the Currency) without prior approval of the Board. The President
of NCB may delegate authorities up to this limit to such committees and
individual officers as he may deem appropriate.
Lending Limits
Single Borrower
The total amount of loans, letters of credit, leases and other financing
that may be made available to any one borrower may not exceed 15% of NCB's
capital. The approval of any loan to a single borrower which has a combined
total of financing from NCB in excess of 75% of the 15% limit is subject to the
prior approval of the Loan and Business Development Committee of the Board.
Cooperatives of Primary Producers
The total dollar value of loans to cooperatives that produce, market and
furnish goods, services and facilities on behalf of their members as primary
producers may not exceed 10% of the gross assets of NCB. The total dollar volume
of loans NCB will allow to be outstanding to any producer cooperative may not
exceed 20% of the amount available for loans to all producer cooperatives.
Interest Rates
Generally
NCB charges interest rates approximately equal to the market rates charged
by other lending institutions for comparable types of loans. NCB seeks to price
its loans to yield a reasonable return on its portfolio in order to build and
maintain the financial viability of NCB and to encourage the development of new
and existing cooperatives. In addition, to ensure that NCB will have access to
additional sources of capital in order to sustain its growth, NCB seeks to
maintain a portfolio that is competitively priced and of sound quality.
Interest Rates for Real Estate Loans
Real estate loans are priced under rate guidelines issued by NCB's Real
Estate Lending Group for specific types of loans with specific maturities. NCB
takes the following factors into consideration in pricing its real estate loans:
loan-to-value ratios, lien position, cooperative payment history, reserves,
occupancy level and cash flow. NCB fixes rates based on a basis point spread
over U.S. Treasury securities with yields adjusted to constant maturity of one,
three, five or ten years. Interest rate may be fixed at the time of commitment
for a period generally not exceeding 30 days.
Interest Rates on Commercial Loans
4
<PAGE>
NCB makes commercial loans at fixed and variable interest rates. Loan
pricing is based on prevailing market conditions, income and portfolio
diversification objectives and the overall assessment of risk. Typically,
commercial loan repayment schedules are structured by NCB with flat monthly
principal reduction plus interest on the outstanding balance.
Fees
NCB typically assesses fees to cover the costs of NCB of its consideration
of and handling of loan transactions, and to compensate NCB for setting aside
funds for future draws under a commitment. The legal fees paid to outside legal
counsel retained by NCB for loan transactions are charged to the borrower.
Underwriting
When evaluating credit requests, NCB seeks to determine whether a
prospective borrower has and/or will have sound management, sufficient cash flow
to service debt, assets in excess of liabilities and a continuing demand for its
products, services or use of its facilities, so that the request will be repaid
in accordance with its terms.
NCB evaluates repayment ability based upon an analysis of a borrower's
historical cash flow and conservative projections of future cash flows from
operations. This analysis focuses on determining the predictability of future
cash flows as a primary source of repayment.
Security
Loans made by NCB are generally secured by specific collateral. If
collateral security is required, the value of the collateral must be reasonably
sufficient to protect NCB from loss, in the event that the primary sources of
repayment of financing from the normal operation of the cooperative, or
refinancing, prove to be inadequate for debt repayment. Collateral security
alone is not a sufficient basis for NCB to extend credit. Unsecured loans
normally are made only to borrowers with strong financial conditions, operating
results and demonstrated repayment ability.
Loans Benefiting Low-Income Persons
Under the NCCBA, the Board of Directors must use its best efforts to insure
that at the end of each NCB fiscal year at least 35% of its outstanding loans
are to (1) cooperatives whose members are predominantly low-income persons, as
defined by NCB, and (2) other cooperatives that propose to undertake to provide
specialized goods, services, or facilities to serve the needs of predominantly
low-income persons. NCB defines a "low-income person", for these purposes, as an
individual whose family's income does not exceed 80% of the median family
income, adjusted for family size for the area where the cooperative is located,
as determined by the Department of Housing and Urban Development.
Loans for Residential Purposes
Commencing on October 1, 1985, the NCCBA prohibited NCB from making loans
for financing, construction, ownership, acquisition or improvement of any
structure used primarily for residential purposes if, after giving effect to
such loan, the aggregate amount of all loans outstanding for such purposes will
exceed 30% of the gross assets of NCB.
To date, the 30% cap on residential real estate loans has not restricted
NCB's ability to provide financial services to residential borrowers. NCB has
been able to maintain its position in the residential real estate market without
increased real estate portfolio exposure by selling real estate loans to
secondary market purchasers of such loans. Since October 1, 1985, the
preponderance of NCB's real estate volume has been predicated upon sale to
secondary market purchasers. There can, however, be no assurance that NCB's
future lending for residential purposes will not be impaired by the statutory
limit. As of September 30, 1996, approximately 16.20% of NCB's total assets
consisted of loans made for residential purposes.
5
<PAGE>
Operations of Subsidiaries
NCB also attempts to fulfill its statutory mission by providing financing
opportunities to cooperatives through several subsidiaries.
Cooperative Funding Corporation ("CFC") is a wholly-owned subsidiary of
NCB. CFC provides fee-compensated corporate financial services to customers of
NCB and to other corporations which may be members of cooperatives, or which
sponsor employee stock ownership plans. CFC is registered as a broker-dealer
with the Commission and is a member of the National Association of Securities
Dealers.
NCB Investment Advisers, Inc. has been organized to provide investment
advisory services to cooperatives. It is registered as an investment adviser
with the Commission.
NCB Financial Corporation is a Delaware chartered, wholly-owned, S&L
holding company whose sole subsidiary is NCB Savings Bank, FSB.
NCB Savings Bank, FSB is a federally chartered, federally insured savings
bank located in Hillsboro, Ohio.
NCB Mortgage Corporation is a wholly-owned subsidiary of NCB that
originates and services loans to cooperatives.
NCB Insurance Brokers, Inc. is engaged in the business of brokering
housing-related insurance to cooperatives.
NCB I, Inc. ("NCB I") is a wholly-owned, special purpose corporation that
holds credit enhancement certificates related to the securitization and sale of
cooperative real estate loans. NCB and NCB I are parties to an agreement under
which each agrees not to commingle the assets of NCB I with those of NCB.
NCB Retail Finance Corporation ("NCBRFC") is a wholly-owned special purpose
corporation that participates in the securitization and sale of loans to
customers involved in the grocery business. NCBRFC is required by its
certificate of incorporation to have at least two directors independent of NCB
and to avoid commingling its assets with those of NCB.
Competition
The Congress created and capitalized NCB because it found that existing
financial institutions were not making adequate financial services available to
cooperative, not-for-profit business enterprises. However, NCB experiences
considerable competition in lending to the most creditworthy cooperative
enterprises.
Taxes
The NCCBA provides that NCB shall be treated as a cooperative within the
meaning of Section 1381(a)(2) of the Internal Revenue Code. As such and pursuant
to the provisions of the NCCBA NCB, in determining its taxable income for
Federal income tax purposes, is allowed a deduction for an amount equal to any
patronage refunds in the form of cash, of Class B or Class C stock, or allocated
surplus that are distributed or set aside by NCB during the applicable tax
period. To date, NCB has followed the policy of distributing or setting aside
such patronage refunds during the applicable tax period, and this has
effectively reduced NCB's Federal income tax liability to insignificant amounts.
Section 109 of the NCCBA, as amended, provides that NCB, including its
franchise, capital, reserves, surplus, mortgages or other security holding and
income, is exempt from taxation by any state, county, municipality or local
taxing authority, except that any real property held by NCB is subject to any
state, county, municipal or local taxation to the same extent according to its
value as other real property is taxed.
6
<PAGE>
In 1995, it was determined that all income generated by NCB and its
subsidiaries, with the exception of the NCB Savings Bank, qualifies as patronage
income under the Internal Revenue Code, with the consequence that NCB is able to
issue tax deductible patronage refunds with respect to all such income.
NCB's subsidiaries are subject to state income taxes.
Neither interest income nor gains realized in respect of the Debt
Securities is exempt from taxation by the United States or any state, county,
municipality or local taxing authority therein.
Agreement Concerning the Class A Notes
The NCCBA, as amended, provided that the interest rate payable to the
United States on the Class A Notes was limited until October 1, 1990 to 25% of
NCB's net income. Following a passage of a technical amendment to the NCCBA, NCB
entered into as of December 21, 1989, a Financing Agreement with the U.S.
Treasury to govern the interest rates payable on the Class A Notes until their
final redemption on October 31, 2020. Pursuant to the Financing Agreement, NCB
has issued to the U.S. Treasury four replacement Class A Notes. As of January
10, 1997 the face amounts and current maturities of the outstanding replacement
notes were as follows:
Replacement Current Maturity
Note Date Amount Maturity
- --------------------------------------------------------------------------------
1 4/1/97 $53,553,328 3 months
2 10/1/99 $36,854,000 36 months
3 10/1/00 $55,281,000 60 months
4 10/1/00 $36,854,000 120 months
When each note matures NCB has the right to borrow again from the Treasury
the maturing amount under the same terms and conditions. NCB intends generally
to avail itself of this right. Thus, until the final redemption of the Class A
Notes, NCB would have outstanding to the U.S. Treasury four tranches of Class A
Notes in the maturities stated above. In November 1994, however, NCB adopted a
Capitalization and Patronage Refund Policy that contemplates the probable
retirement of $25 million of Class A Notes in 2010 and $25 million in 2015. At
each maturity date, the interest rate to be paid upon the note for the
succeeding period will be calculated by the U.S. Treasury based upon the
then-prevailing interest rates for Treasury obligations of comparable
maturities.
Properties
NCB leases space for its Washington, D.C. headquarters and for three
regional offices located in Minneapolis, New York City, and Anchorage. NCB
Financial Corporation and NCB I maintain offices in Wilmington, Delaware. NCB's
headquarters is 34,464 square feet in size and regional offices average 1500
square feet. The rental expense for the fiscal year ended December 31, 1995 was
$1,290,000 for NCB's headquarters and regional offices. NCB considers the
regional offices suitable for its needs and the facilities are fully utilized in
its operations.
Regulation
NCB is organized under the laws of the United States. NCB is examined
annually by the Farm Credit Administration, and the General Accounting Office is
authorized to audit NCB. Reports of such examinations and audits are to be
forwarded to the Congress, which has the sole authority to amend or revoke NCB's
charter. NCB Savings Bank, FSB is regulated by the Federal Office of Thrift
Supervision.
7
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA OF NCB
The following table contains selected consolidated financial data for NCB
and its subsidiaries for the five years ended December 31, 1995 and the
nine-month periods ended September 30, 1996 and 1995. The financial data for
each of the years ended December 31, 1991 through 1995 have been derived from
audited financial statements. The financial data for the nine months ended
September 30, 1996 and 1995 have been derived from unaudited financial
statements and reflect, in the opinion of management, all adjustments
(consisting or normal recurring accruals) necessary to present fairly the
information for such interim periods. Results for the interim periods are not
necessarily indicative of results to be expected for the full year. The summary
below should be read in conjunction with the Consolidated Financial Statements
of NCB and the related Notes thereto and Management's Discussion and Analysis of
Financial Condition and Results of Operations which are contained in each of
NCB's Annual Reports on Form 10-K for the years ended December 31, 1991 through
1995 and NCB's Quarterly Report on Form 10-Q for the quarters ended September
30, 1995 and 1996. See "Incorporation of Certain Documents by Reference."
<TABLE>
<CAPTION>
Nine Months Ended September 30, Year Ended December 31,
------------------------------- ---------------------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
---- ---- ---- ---- ---- ---- ----
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Total interest income $ 43,157 $ 37,522 $ 52,498 $ 41,123 $ 38,997 $ 44,063 $ 45,997
Net interest income 17,864 15,705 21,745 20,514 18,334 20,145 19,178
Net income 10,139 6,036 9,083 8,877 8,616 6,060 5,864
BALANCE SHEET DATA
(at period end)
Loans and leases outstanding $ 676,587 $ 593,271 $ 597,190 $ 501,090 $ 457,713 $ 457,551 $ 447,484
Total assets 770,516 668,673 684,532 567,321 535,767 527,861 517,175
Total capital* 300,995 295,749 292,581 287,521 287,407
Subordinated Class A Notes** 182,869 183,038 182,542 182,542 182,542 182,857 184,270
Long-term borrowings, including 384,948 350,242 337,230 287,899 312,897 330,380 281,433
Subordinated Class A Notes
Members' equity 123,498 117,820 118,453 113,207 110,039 104,664 103,137
Other borrowed funds 365,288 256,315 230,868 228,512 217,929
including deposits
OTHER DATA
Capital to assets** 39.7% 44.0% 44.0% 52.3% 54.6% 54.5% 55.6%
Return on average assets 1.89% 1.36% 1.5% 1.7% 1.6% 1.2% 1.2%
Return on average members' 7.8% 7.9% 8.0% 5.8% 5.8%
equity 11.16% 6.94%
Net yield on interest earning assets 8.52% 8.90% 3.7% 4.1% 3.7% 3.9% 4.0%
Average members' equity as a 17.0% 19.7% 18.9% 21.5% 20.4% 19.8% 20.7%
percent of average total assets
Average total loans and lease 19.7% 22.6% 21.9% 25.0% 24.3% 22.6% 23.9%
financings
Net average loans and lease 84.0% 85.1% 86.2% 83.4% 81.9% 85.7% 84.8%
financing to average total assets
Net average earning assets to 95.1% 95.6% 94.9% 93.3% 93.2% 96.5% 96.4%
average total assets
Allowance for loan losses to loans 2.2% 2.3% 2.5% 2.6% 2.7% 2.3% 1.9%
outstanding
Provision for loan losses to average 0.2% 0.2% 0.4% 0.2% 0.3% 0.5% 0.6%
loans outstanding
</TABLE>
- ----------
* Capital includes members' equity and subordinated Class A Notes.
** Net of deferred hedge gains.
8
<PAGE>
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement, the net
proceeds from the sale of the Debt Securities will be used for general corporate
purposes. Such purposes may include the retirement of all or part of NCB's 8.18%
Amended and Restated Series A Notes due June 24, 1997 and 7.32% Amended and
Restated Series B Notes due December 24, 1997.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for NCB is computed by dividing
earnings by fixed charges. Earnings consist primarily of income before income
taxes and fixed charges. Fixed charges represent interest expense and the
proportion of rental expense deemed representative of the interest factor. In
addition, where indicated, fixed charges include interest on deposits.
<TABLE>
<CAPTION>
Nine Months
Ended
September 30, Year Ended December 31,
------------- -----------------------
1996 1995 1995 1994 1993 1992 1991
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Including interest on deposits 1.42 1.30 1.32 1.45 1.45 1.28 1.23
Excluding interest on deposits 1.48 1.34 1.36 1.50 1.49 1.30 1.25
</TABLE>
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Indenture, dated January
15,1997 (the "Indenture"), between NCB and The First National Bank of
Chicago (the "Trustee"), that will be filed as an exhibit to or incorporated
by reference in the Registration Statement of which this Prospectus is a
part. The following summary of certain provisions of the Indenture does not
purport to be complete and is subject to, and qualified in its entirety by
reference to, all provisions of the Indenture, including the definitions
therein of certain terms. Wherever particular Sections or defined terms of
the Indenture are referred to, it is intended that such Sections or defined
terms (including, unless otherwise indicated herein, definitions of terms
capitalized in this summary) shall be incorporated herein by reference. The
following sets forth certain general terms and provisions of the Debt
Securities to which any Prospectus Supplement may relate. The particular
terms of the Debt Securities offered by any Prospectus Supplement and the
extent, if any, to which such general provisions may apply to the Debt
Securities so offered, will be described in the Prospectus Supplement
relating to such Debt Securities. There is no requirement that future issues
of debt securities of NCB be issued under the Indenture, and NCB is free to
employ other indentures or documentation containing provisions different from
those included in the Indenture or applicable to one or more issues of Debt
Securities in connection with future issues of such other debt securities.
General
The Indenture does not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provides that Debt Securities may
be issued from time to time in one or more series up to the aggregate principal
amount which may be authorized from time to time by NCB. The Debt Securities
will be direct, unsecured obligations of NCB and will rank on a parity with
other unsecured and unsubordinated indebtedness of NCB.
The Debt Securities are not guaranteed by the United States and shall not
constitute a debt or obligation of the United States or any instrumentality
thereof.
The Indenture provides that there may be more than one Trustee under the
Indenture with respect to one or more series of Debt Securities. Any Trustee
under the Indenture may resign or be removed with respect to one or more series
of Debt Securities issued under the Indenture, and a successor Trustee may be
appointed to act with respect to such series. Reference is made to the
Prospectus Supplement relating to the particular series of Debt Securities
offered thereby for the following terms: (1) the title of such Debt Securities
and series in which such Debt Securities will be
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<PAGE>
included; (2) any limit on the aggregate principal amount of such Debt
Securities; (3) the price or prices (expressed as a percentage of the aggregate
principal amount thereof) at which such Debt Securities will be issued; (4) the
date or dates, or the method or methods, if any, by which such date or dates
shall be determined, on which such Debt Securities will mature and, if other
than the principal amount thereof, the portion of the principal amount of such
Debt Securities payable at maturity; (5) the rate or rates (which may be fixed
or variable) at which such Debt Securities will bear interest, if any, or the
method or methods, if any, by which such rate or rates are to be determined and
the manner upon which interest will be calculated if other than that of a
360-day year of twelve 30-day months; (6) the date or dates from which such
interest, if any, on such Debt Securities will accrue or the method or methods,
if any, by which such date or dates are to be determined, the date or dates on
which such interest, if any, will be payable, the date on which payment of such
interest, if any, will commence and the Regular Record Dates for such Interest
Payment Dates, if any; (7) the date or dates, if any, on or after which, or the
period or periods, if any, within which, and the price or prices at which the
Debt Securities will, pursuant to any mandatory sinking fund provisions, or may,
pursuant to any optional sinking fund or to any purchase fund provisions, be
redeemed by NCB, and the other terms and provisions of such sinking and/or
purchase funds; (8) the date or dates, if any, on or after which, or the period
or periods, if any, within which, and the price or prices at which the Debt
Securities may, pursuant to any optional redemption provisions, be redeemed at
the option of NCB or of the holder thereof and the other terms and provisions of
such optional redemption; (9) the extent to which any of the Debt Securities
will be issuable in temporary or permanent global form and, if so, the identity
of the depositary for such global Debt Security, or the manner in which any
interest payable on a temporary or permanent global Debt Security will be paid;
(10) the denomination or denominations in which such Debt Securities are
authorized to be issued if other than $1,000 (in the case of Debt Securities
issued in registered form) or $5,000 (in the case of Debt Securities issued in
bearer form) and integral multiples thereof; (11) whether such Debt Securities
will be issued in registered or bearer form or both and, if in bearer form, the
terms and conditions relating thereto and any limitations on issuance of such
bearer Debt Securities (including exchange for registered Debt Securities of the
same series); (12) information with respect to book-entry procedures relating to
global Debt Securities; (13) the terms, if any, upon which such Debt Securities
may be convertible into other securities of NCB and the terms and conditions
upon which such conversion may be effected, including the initial conversion
price or rate and any other provision in addition to or in lieu of those
described herein; (14) whether any of the Debt Securities will be issued as
Original Issue Discount Securities; (15) each office or agency where, subject to
the terms of the Indenture, the principal of, and premium and interest, if any,
on, the Debt Securities will be payable and where such Debt Securities may be
presented for registration of transfer or exchange; (16) the currencies or
currency units in which such Debt Securities are issued and in which the
principal of, and premium and interest, if any, on, and additional amounts, if
any, in respect of such Debt Securities will be payable; (17) whether the amount
of payments of principal of, and interest on, and additional amounts, if any, in
respect of such Debt Securities may be determined with reference to an index,
formula or other method or methods (which index, formula or method or methods
may, but need not be, based on one or more currencies, currency units or
composite currencies, commodities, equity indices or other indices) and the
manner in which such amounts shall be determined; (18) whether NCB or a holder
may elect payment of the principal of, or premium or interest, if any, on, or
additional amounts in respect of, such Debt Securities in a currency,
currencies, currency unit or units or composite currency or currencies other
than that in which such Debt Securities are denominated or stated to be payable,
the period or periods within which, and the terms and conditions upon which,
such election may be made, and the time and manner of determining the exchange
rate between the currency, currencies, currency unit or units or composite
currency or currencies in which such Debt Securities are denominated or stated
to be payable and the currency, currencies, currency unit or units or composite
currency or currencies in which such Debt Securities are to be paid; (19) if
other than the Trustee, the identity of each Security Registrar, Paying Agent
and Authenticating Agent; (20) the applicability of the defeasance provisions to
such Debt Securities; (21) the person to whom any interest on any registered
Debt Securities of the series shall be payable, if other than the person in
whose name that Debt Security (or one or more predecessor Debt Securities) is
registered at the close of business on the applicable Regular Record Date for
such payment of interest, the manner in which, or the person to whom, any
interest on any bearer Debt Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons appertaining
thereto as they severally mature, and the extent to which, or the manner in
which, any interest payable on a temporary global Debt Security on an Interest
Payment Date will be paid if other than in the
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<PAGE>
manner provided in the Indenture; (22) whether and under what circumstances NCB
will pay additional amounts as contemplated by Section 1004 of the Indenture
(the term "interest", as used in this Prospectus, shall include such additional
amounts) on such Debt Securities to any holder who is a United States Alien (as
defined in the Indenture) (including any modification to the definition of such
term as contained in the Indenture as originally executed) in respect of any
tax, assessment or governmental charge and, if so, whether NCB will have the
option to redeem such Debt Securities rather than pay such additional amounts
(and the terms of any such option); (23) any deletions from, modifications of or
additions to the Events of Default or covenants of NCB with respect to any of
such Debt Securities; (24) any special Federal income tax considerations
applicable to such Debt Securities; and (25) any other terms of such Debt
Securities (which will not be inconsistent with the provisions of the
Indenture).
Debt Securities may be issued as Original Issue Discount Securities to be
sold at a substantial discount below their principal amount. In the event of an
acceleration of the maturity of any Original Issue Discount Security, the amount
payable to the holder of such Original Issue Discount Security upon such
acceleration will be determined in accordance with the applicable Prospectus
Supplement, the terms of such Debt Security and the Indenture, but will be an
amount less than the amount payable at the maturity of the principal of such
Original Issue Discount Security. Special Federal income tax and other
considerations applicable thereto will be described in the Prospectus Supplement
relating thereto.
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities offered thereby for information with respect to any
deletions from, modifications of or additions to the Events of Default described
below or covenants of NCB contained in the Indenture, including any addition of
a covenant or other provision providing event risk or similar protection.
Registration, Transfer, Payment and Paying Agent
Unless otherwise indicated in the applicable Prospectus Supplement, each
series of Debt Securities will be issued in registered form only, without
coupons. The Indenture, however, provides that NCB may also issue Debt
Securities in bearer form only, or in both registered and bearer form. Debt
Securities in bearer form shall not be offered, sold, resold or delivered in
connection with their original issuance in the United States or to any United
States person (as defined below) other than offices located outside the United
States of certain United States financial institutions. As used herein, "United
States person" means any citizen or resident of the United States, any
corporation, partnership or other entity created or organized in or under the
laws of the United States, or any estate or trust, the income of which is
subject to United States Federal income taxation regardless of its source, and
"United States" means the United States of America (including the States and the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction. Purchasers of Debt Securities in bearer form will be
subject to certification procedures and may be affected by certain limitations
under United States tax laws. Such procedures and limitations will be described
in the Prospectus Supplement relating to the offering of the Debt Securities in
bearer form.
Unless otherwise indicated in the applicable Prospectus Supplement,
registered Debt Securities will be issued in denominations of $1,000 or any
integral multiple thereof and bearer Debt Securities will be issued in
denominations of $5,000. No service charge will be made for any transfer or
exchange of the Debt Securities, but NCB may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Unless otherwise described in the Prospectus Supplement relating thereto,
the principal, premium, if any, and interest, if any, of or on the Debt
Securities will be payable, and transfer of the Debt Securities will be
registrable, at the corporate trust office of The First National Bank of
Chicago, as Paying Agent and Security Registrar under the Indenture, in the
Borough of Manhattan, The City of New York, provided that payments of interest
with respect to any Debt Security in registered form may be made at the option
of NCB by check mailed to the address appearing in the applicable Security
Register of the person in whose name such Debt Security is registered at the
close of business on the Regular Record Date or by transfer to an account
maintained with a bank located in the United States (Sections 305, 307, and
1002).
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<PAGE>
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of, premium, if any, and interest, if any, on Debt Securities in
bearer form will be made payable, subject to any applicable laws and
regulations, at such office outside the United States as specified in the
Prospectus Supplement and as NCB may designate from time to time, at the option
of the holder, by check or by transfer to an account maintained by the payee
with a bank located outside the United States. Unless otherwise indicated in the
applicable Prospectus Supplement, payment of interest and certain additional
amounts on Debt Securities in bearer form will be made only against surrender of
the coupon relating to such Interest Payment Date. No payment with respect to
any Debt Security in bearer form will be made at any office or agency of NCB in
the United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States.
Book-Entry System
Each Debt Security will be issued in fully registered book-entry form (a
"Book-Entry Note"). Each Book-Entry Note will be represented by one or more
fully registered global securities (the "Global Securities") deposited with or
on behalf of The Depository Trust Company (the "Depositary") and registered in
the name of the Depositary or the Depositary's nominee. Interests in the Global
Securities will be shown on, and transfers thereof will be effected only
through, records maintained by the Depositary (with respect to its participants)
and the Depositary's participants (with respect to beneficial owners). Any
additional or differing terms of the depositary arrangement with respect to the
Book-Entry Notes will be described in the applicable Prospectus Supplement. No
Global Security may be transferred except as a whole by a nominee of the
Depositary to the Depositary or to another nominee of the Depositary, or by the
Depositary or such nominee to a successor of the Depositary or a nominee of such
successor.
Upon issuance, all Book-Entry Notes bearing interest (if any) at the same
rate or pursuant to the same formula and having the same date of issue,
Specified Currency, Interest Payment Dates (if any), Stated Maturity Date,
redemption provisions (if any), repayment provisions (if any) and other terms
will be represented by a single Global Security.
So long as the Depositary or its nominee is the registered owner of a
Global Security, the Depositary or its nominee, as the case may be, will be
the sole Holder of the Book-Entry Notes represented thereby for all purposes
under the Indenture. Except as otherwise provided in this section, the
Beneficial Owners of the Global Security or Securities representing
Book-Entry Notes will not be entitled to receive physical delivery of Debt
Securities in certificated form ("Certificated Notes") and will not be
considered the Holders thereof for any purpose under the Indenture, and no
Global Security representing Book-Entry Notes shall be exchangeable or
transferable. Accordingly, each Beneficial Owner must rely on the procedures
of the Depositary and, if such Beneficial Owner is not a Participant, on the
procedures of the Participant through which such Beneficial Owner owns its
interest in order to exercise any rights of a Holder under such Global
Security or the Indenture. The laws of some jurisdictions require that
certain purchasers
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<PAGE>
of securities take physical delivery of such securities in certificated form.
Such limits and such laws may impair the ability to transfer beneficial
interests in a Global Security representing Book-Entry Notes.
Book-Entry Notes represented by a Global Security are exchangeable for
definitive Notes in registered form, of like tenor and of an equal aggregate
principal amount, only if (x) the Depositary notifies NCB in writing that it is
unwilling or unable to continue as Depositary for such Global Security or if at
any time the Depositary ceases to be a clearing agency registered under the
Exchange Act, and a successor depositary is not appointed by NCB within 60 days
(y) NCB in its sole discretion determines not to have such Book-Entry Notes
represented by one or more Global Securities or (z) an event shall have happened
and be continuing which, after notice or lapse of time, or both, would
constitute an Event of Default with respect to such Book-Entry Notes. Any Global
Security representing Book-Entry Notes that is exchangeable pursuant to the
preceding sentence shall be exchangeable in whole for definitive Notes in
registered form, of like tenor and of an equal aggregate principal amount, in
minimum denominations of $1,000 and integral multiples of $1,000 in excess
thereof (or in such amounts in other currencies or composite currencies as
specified in the applicable Prospectus Supplement). Such definitive Notes shall
be registered in the name or names of such person or persons as the Depositary
shall instruct the Security Registrar. It is expected that such instructions may
be based upon directions received by the Depositary from its participants with
respect to ownership of Book-Entry Notes.
Except as provided above, owners of Book-Entry Notes will not be entitled
to receive physical delivery of Notes in definitive form and no Global Security
representing Book-Entry Notes shall be exchangeable, except for another Global
Security of like denomination and tenor to be registered in the name of the
Depositary or its nominee. Accordingly, each person owning a Book-Entry Note
must rely on the procedures of the Depositary and, if such person is not a
participant, on the procedures of the participant through which such person owns
its beneficial interest, to exercise any rights of a Holder under the Notes. NCB
understands that, under existing industry practices, in the event that (i) NCB
requests any action of Holders or (ii) an owner of a Book-Entry Note desires to
give or take any action which a Holder is entitled to give or take under the
Notes in accordance with the terms of the Notes, the Depositary would authorize
the participants owning the relevant Book-Entry Notes to give or take such
action, and such participants would authorize beneficial owners owning through
such participants to give or take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
The Depositary will act as securities depository for the Book-Entry Notes.
The Book-Entry Notes will be issued as fully registered securities registered in
the name of Cede & Co. (the Depositary's partnership nominee). One fully
registered Global Security will be issued for each issue of Book-Entry Notes,
each in the aggregate principal amount of such issue, and will be deposited with
the Depositary.
The Depositary is a limited-purpose trust company organized under the New
York Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code, and a "clearing
agency" registered pursuant to the provisions of Section 17A of the Exchange
Act. The Depositary holds securities that its participants ("Participants")
deposit with the Depositary. The Depositary also facilitates the settlement
among Participants of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry changes in
Participants' accounts, thereby eliminating the need for physical movement of
securities certificates. Direct Participants of the Depositary ("Direct
Participants") include securities brokers and dealers (including the Agents),
banks, trust companies, clearing corporations and certain other organizations.
The Depositary is owned by a number of its Direct Participants and by the New
York Stock Exchange, Inc., the American Stock Exchange, Inc., and the National
Association of Securities Dealers, Inc. Access to the Depositary's system is
also available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect
13
<PAGE>
Participants"). The rules applicable to the Depositary and its Participants are
on file with the Commission.
Purchases of Book-Entry Notes under the Depositary's system must be made by
or through Direct Participants, which will receive a credit for such Book-Entry
Notes on the Depositary's records. The ownership interest of each actual
purchaser of each Book-Entry Note represented by a Global Security ("Beneficial
Owner") is in turn to be recorded on the records of Direct Participants and
Indirect Participants. Beneficial Owners will not receive written confirmation
from the Depositary of their purchase, but Beneficial Owners are expected to
receive written confirmations providing details of the transaction, as well as
periodic statements of their holdings, from the Direct Participants or Indirect
Participants through which such Beneficial Owner entered into the transaction.
Transfers of ownership interests in a Global Security representing Book-Entry
Notes are to be accomplished by entries made on the books of Participants acting
on behalf of Beneficial Owners. Beneficial Owners of a Global Security
representing Book-Entry Notes will not receive Certificated Notes representing
their ownership interests therein, except in the event that use of the
book-entry system for such Book-Entry Notes is discontinued.
To facilitate subsequent transfers, all Global Securities representing
Book-Entry Notes which are deposited with, or on behalf of, the Depositary are
registered in the name of the Depositary's nominee, Cede & Co. The deposit of
Global Securities with, or on behalf of, the Depositary and their registration
in the name of Cede & Co. effect no change in beneficial ownership. The
Depositary has no knowledge of the actual Beneficial Owners of the Global
Securities representing the Book-Entry Notes; the Depositary's records reflect
only the identity of the Direct Participants to whose accounts such Book-Entry
Notes are credited, which may or may not be the Beneficial Owners. The
Participants will remain responsible for keeping account of their holdings on
behalf of their customers.
Conveyance of notices and other communications by the Depositary to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Neither the Depositary nor Cede & Co. will consent or vote with respect to
the Global Securities representing the Book-Entry Notes. Under its usual
procedures, the Depositary mails an Omnibus Proxy to NCB as soon as possible
after the applicable record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose accounts the
Book-Entry Notes are credited on the applicable record date (identified in a
listing attached to the Omnibus Proxy).
Principal, premium, if any, and/or interest, if any, payments on the Global
Securities representing the Book-Entry Notes will be made in immediately
available funds to the Depositary. The Depositary's practice is to credit Direct
Participants' accounts on the applicable payment date in accordance with their
respective holdings shown on the Depositary's records unless the Depositary has
reason to believe that it will not receive payment on such date. Payments by
Participants to Beneficial Owners will be governed by standing instructions and
customary practices, as is the case with securities held for the accounts of
customers in bearer form or registered in "street name", and will be the
responsibility of such Participant and not of the Depositary, the Trustee or
NCB, subject to any statutory or regulatory requirements as may be in effect
from time to time. Payment of principal, premium, if any, and/or interest, if
any, to the Depositary is the responsibility of NCB or the Trustee, disbursement
of such payments to Direct Participants shall be the responsibility of the
Depositary, and disbursement of such payments to the Beneficial Owners shall be
the responsibility of Direct Participants and Indirect Participants.
If applicable, redemption notices shall be sent to Cede & Co. If less than
all of the Book-Entry Notes within an issue are being redeemed, the Depositary's
practice is to determine by lot the amount of the interest of each Direct
Participant in such issue to be redeemed.
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<PAGE>
A Beneficial Owner shall give notice of any option to elect to have its
Book-Entry Notes repaid by NCB, through its Participant, to the Trustee, and
shall effect delivery of such Book-Entry Notes by causing the Direct Participant
to transfer the Participant's interest in the Global Security or Securities
representing such Book-Entry Notes, on the Depositary's records, to the Trustee.
The requirement for physical delivery of Book-Entry Notes in connection with a
demand for repayment will be deemed satisfied when the ownership rights in the
Global Security or Securities representing such Book-Entry Notes are transferred
by Direct Participants on the Depositary's records.
The Depositary may discontinue providing its services as securities
depository with respect to the Book-Entry Notes at any time by giving reasonable
notice to NCB or the Trustee. Under such circumstances, in the event that a
successor securities depository is not obtained, Certificated Notes are required
to be printed and delivered.
NCB may decide to discontinue use of the system of book-entry transfers
through the Depositary (or a successor securities depository). In that event,
Certificated Notes will be printed and delivered.
Outstanding Debt Securities
In determining whether the holders of the requisite principal amount of
Outstanding Debt Securities have given any request, demand, authorization,
direction, notice, consent or waiver under the Indenture, (i) the portion of the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be that portion of the principal amount
thereof that could be declared to be due and payable pursuant to the terms of
such Original Issue Discount Security as of the date of such determination, (ii)
the principal amount of any Indexed Security shall be the principal face amount
of such Indexed Security determined on the date of its original issuance, (iii)
the principal amount of a Debt Security denominated in a Foreign Currency (as
defined below) shall be the U.S. dollar equivalent, determined on the date of
original issue of such Debt Security, of the principal amount of such Debt
Security and (iv) any Debt Security owned by NCB or any obligor on such Debt
Security or any Affiliate of NCB or such other obligor, shall be deemed not to
be Outstanding (Section 101).
Modification and Waiver
Modifications and amendments of the Indenture may be made by NCB and the
Trustee with the consent of the holders of 66-2/3% in aggregate principal
amount of the Outstanding Debt Securities of each series affected by such
modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the holder of each Outstanding Debt
Security affected thereby: (a) change the stated maturity date of the principal
of, or any installment of principal or interest on, any Debt Security; (b)
reduce the principal amount of, or any premium or interest on, any Debt
Security; (c) reduce the amount of principal of an Original Issue Discount
Security payable upon acceleration of the maturity thereof or the amount thereof
provable in bankruptcy; (d) change the redemption provisions or adversely affect
the right of repayment at the option of any holder; (e) change the place of
payment of, currency of payment of principal of, or any premium or interest on,
any Debt Security; (f) impair the right to institute suit for the enforcement of
any payment on or with respect to any Debt Security; (g) reduce the percentage
in principal amount of Outstanding Debt Securities of any series the consent of
whose holders is required for modification or amendment of the Indenture or for
waiver of compliance with certain provisions of the Indenture or for waiver of
certain defaults; (h) modify the provisions of the Indenture described in this
paragraph or those regarding waiver of compliance with certain provisions of, or
certain defaults and their consequences under, the Indenture, except to increase
the percentage of Outstanding Debt Securities necessary to modify and amend the
Indenture or to give any such waiver, and except to provide that certain other
provisions of the Indenture cannot be modified or waived without the consent of
the holder of each Outstanding Debt
15
<PAGE>
Security affected thereby; or (i) make any change that adversely affects the
right to convert any Debt Security.
The holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of each series may, on behalf of all holders of Debt Securities
of that series, waive, insofar as that series is concerned, compliance by NCB
with certain restrictive provisions of the Indenture (Section 1007). The holders
of a majority in aggregate principal amount of the Outstanding Debt Securities
of each series may, on behalf of all holders of Debt Securities of that series,
waive any past default under the Indenture with respect to Debt Securities of
that series, except a default in the payment of principal or any premium or
interest on a Debt Security of such series, or a default in respect of a
provision which under the Indenture cannot be modified or amended without the
consent of the holder of each affected Outstanding Debt Security of that series
(Section 513).
Modifications and amendments of the Indenture may be made by NCB and the
Trustee without the consent of any holder for any of the following purposes: (i)
to evidence the succession of another corporation to NCB; (ii) to add to the
covenants of NCB for the benefit of the holders of all or any series of Debt
Securities or to surrender any right or power therein conferred upon NCB; (iii)
to add or change any provisions of the Indenture to facilitate the issuance of
bearer Debt Securities; (iv) to establish the form or terms of Debt Securities
of any series and any related coupons; (v) to provide for the acceptance of
appointment by a successor Trustee; (vi) to cure any ambiguity, defect or
inconsistency in the Indenture, provided such action does not adversely affect
the interests of holders of Debt Securities of any series or any related coupons
in any material respect; (vii) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or purposes of
issue, authentication and delivery of Debt Securities; (viii) to add any
additional Events of Default; (ix) to supplement any of the provisions of the
Indenture to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Debt Securities, provided such action
does not adversely affect the interests of holders of Debt Securities of such
series or any related coupons in any material respect; (x) to secure the Debt
Securities; (xi) to make provisions with respect to conversion rights of holders
of Debt Securities of any series; and (xii) to amend or supplement any provision
contained in the Indenture or in any supplemental indenture, provided that such
amendment or supplement does not materially adversely affect the interests of
the holders of any Debt Securities then Outstanding (Section 901).
Consolidation, Merger and Sale of Assets
NCB may consolidate or merge with or into, or transfer its assets
substantially as an entirety to, any corporation organized under the laws of any
domestic jurisdiction, provided that the successor corporation assumes NCB's
obligations on the Debt Securities and under the Indenture, that after giving
effect to the transaction no Event of Default, and no event which, after notice
or lapse of time or both, would become an Event of Default, shall have occurred
and be continuing, and that certain other conditions are met (Section 801).
Events of Default
The following are Events of Default under the Indenture with respect to
Debt Securities of any series: (a) failure to pay principal of, or any
premium on, any Debt Security of that series when due; (b) failure to pay any
interest on any Debt Security of that series when due, continued for 30 days;
(c) failure to deposit any sinking fund payment, when due, in respect of any
Debt Security of that series; (d) breach of any other covenant or warranty of
NCB in the Indenture (other than a covenant or warranty included in the
Indenture solely for the benefit of a series of Debt Securities other than
that series), continued for 60 days after written notice as provided in the
Indenture; (e) certain events in bankruptcy, insolvency or reorganization
involving NCB; (f) acceleration of Indebtedness in a principal amount in
excess of $10,000,000 of NCB under the terms of the instrument under which
such Indebtedness was issued or secured, if such acceleration is not annulled
within 30 days after written notice as provided in the Indenture; and (g) any
other Event of Default provided with respect to Debt Securities of that
series (Section 501). If an Event of Default with respect to Debt Securities
of any series at the time Outstanding (other than an Event of Default
described in clause (e) above) occurs and is continuing,
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<PAGE>
either the Trustee or the holders of at least 25% in aggregate principal amount
of the Outstanding Debt Securities of that series may declare the principal
amount of all the Debt Securities of that series or such lesser amount as may be
provided for in the Debt Securities of such series to be due and payable
immediately. If an Event of Default specified in clause (e) above with respect
to Debt Securities of any series at the time Outstanding occurs, the principal
amount of all the Debt Securities of that series or such lesser amount as may be
provided for in the Debt Securities of such series will ipso facto become
immediately due and payable without any declaration on the part of the Trustee
or any holder. At any time after Debt Securities of any series have been
accelerated, but before a judgment or decree based on acceleration has been
obtained, the holders of a majority in aggregate principal amount of Outstanding
Debt Securities of that series may rescind and annul such acceleration, provided
that, among other things, all Events of Default with respect to such series,
other than payment defaults caused by such acceleration, have been cured or
waived as provided in the Indenture (Section 502).
Discharge, Defeasance and Covenant Defeasance
NCB may discharge certain obligations to holders of any series of Debt
Securities that have not already been delivered to the Trustee for cancellation
and that either have become due and payable or will become due and payable
within one year (or scheduled for redemption within one year) by depositing with
the Trustee, in trust, funds in U.S. dollars or in such Foreign Currency in
which such Debt Securities are payable in an amount sufficient to pay the entire
indebtedness on such Debt Securities in respect of principal (and premium, if
any) and interest to the date of such deposit (if such Debt Securities have
become due and payable) or to the Maturity thereof, as the case may be (Section
401).
The Indenture provides that, if the provisions of Section 402 thereof are
made applicable to the Debt Securities of or within any series pursuant to
Section 301 thereof, NCB may elect to defease and be discharged from any and all
obligations with respect to such Debt Securities (except for, among other
things, the obligation to pay Additional Amounts, if any, upon the occurrence of
certain events of taxation, assessment or governmental charge with respect to
payments on such Debt Securities and the obligations to register the transfer or
exchange of such Debt Securities, to replace temporary or mutilated, destroyed,
lost or stolen Debt Securities, to maintain an office or agency in respect of
such Debt Securities and to hold moneys for payment in trust) ("defeasance")
(Section 402(2)) or, if provided pursuant to Section 301 of the Indenture, its
obligations with respect to any covenant, and any omission to comply with such
obligations shall not constitute a default or an Event of Default with respect
to such Debt Securities ("covenant defeasance") (Section 402(3)), upon the
irrevocable deposit by NCB with the Trustee, in trust, of an amount, in U.S.
dollars or in such Foreign Currency in which such Debt Securities are payable at
Stated Maturity, or Government Obligations (as defined below), or both,
applicable to such Debt Securities which through the scheduled payment of
principal and interest in accordance with their terms will provide money in an
amount sufficient to pay the principal of (and premium, if any) and interest on
such Debt Securities, and any mandatory sinking fund or analogous payments
thereon, on the scheduled due dates therefor (Section 402(4)).
Such a trust may only be established if, among other things, (i) the
applicable defeasance or covenant defeasance does not result in a breach or
violation of, or constitute a default under, the Indenture or any other material
agreement or instrument to which NCB is a party or by which it is bound, (ii) no
default or Event of Default with respect to the Debt Securities to be defeased
shall have occurred and be continuing on the date of the establishment of such a
trust and (iii) NCB has delivered to the Trustee an Opinion of Counsel (as
specified in the Indenture) to the effect that the holders of such Debt
Securities will not recognize income, gain or loss for U.S. Federal income tax
purposes as a result of such defeasance or covenant defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance or covenant
defeasance had not occurred, and such Opinion of Counsel, in the case of
defeasance, must refer to and be based upon a letter ruling of the Internal
Revenue Service received by NCB, a Revenue Ruling published by the Internal
Revenue Service or a change in applicable U.S. Federal income tax law occurring
after the date of the Indenture (Section 402(4)(d) and (e)).
"Foreign Currency" means any currency, currency unit or composite currency,
including, without limitation, the ECU, issued by the government of one or more
countries other than the United
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States of America or by any recognized confederation or association of such
governments (Section 101).
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the government or the governments in the
confederation which issued the Foreign Currency in which the Debt Securities of
a particular series are payable, for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of America or
such government or governments which issued the Foreign Currency in which the
Debt Securities of such series are payable, the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America or such other government or governments, which, in the case of
clauses (i) and (ii), are not callable or redeemable at the option of the issuer
or issuers thereof, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such Government Obligation or
a specific payment of interest on or principal of or any other amount with
respect to any such Government Obligation held by such custodian for the account
of the holder of a depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of or any other amount with respect to the Government
Obligation evidenced by such depository receipt (Section 101).
Unless otherwise provided in the applicable Prospectus Supplement, if after
NCB has deposited funds and/or Government Obligations to effect defeasance or
covenant defeasance with respect to Debt Securities of any series, (a) the
holder of a Debt Security of such series is entitled to, and does, elect
pursuant to Section 301 of the Indenture or the terms of such Debt Security to
receive payment in a currency other than that in which such deposit has been
made in respect of such Debt Security, or (b) a Conversion Event (as defined
below) occurs in respect of the Foreign Currency in which such deposit has been
made, the indebtedness represented by such Debt Security shall be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of (and premium, if any) and interest, if any, on such Debt Security
as such Debt Security becomes due out of the proceeds yielded by converting the
amount so deposited in respect of such Debt Security into the currency in which
such Debt Security becomes payable as a result of such election or such
Conversion Event based on (x) in the case of payments made pursuant to clause
(a) above, the applicable market exchange rate for such currency in effect on
the second business day prior to such payment date, or (y) with respect to a
Conversion Event, the applicable market exchange rate for such Foreign Currency
in effect (as nearly as feasible) at the time of the Conversion Event (Section
402(5)).
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community, (ii)
the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Community or (iii)
any currency unit or composite currency other than the ECU for the purposes for
which it was established. Unless otherwise provided in the applicable Prospectus
Supplement, all payments of principal of (and premium, if any) and interest on
any Debt Security that is payable in a Foreign Currency that ceases to be used
by its government or confederation of issuance shall be made in U.S. dollars
(Section 101).
In the event NCB effects covenant defeasance with respect to any Debt
Securities and such Debt Securities are declared due and payable because of the
occurrence of any Event of Default or with respect to any other covenant as to
which there has been covenant defeasance, the amount in such Foreign Currency in
which such Debt Securities are payable, and Government Obligations on deposit
with the Trustee, will be sufficient to pay amounts due on such Debt Securities
at the time of their Stated Maturity but may not be sufficient to pay amounts
due on such Debt Securities at the time of the acceleration resulting from such
Event of Default. However, NCB would remain liable to make payment of such
amounts due at the time of acceleration (Section 402).
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<PAGE>
The applicable Prospectus Supplement may further describe the provisions,
if any, permitting such defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the Debt
Securities of or within a particular series.
Under each Indenture, NCB is required to furnish to the Trustee annually a
statement as to performance by NCB of certain of its obligations under the
Indenture and as to any default in such performance. NCB is also required to
deliver to the Trustee, within five days after the occurrence thereof, written
notice of any event which after notice or lapse of time or both would constitute
an Event of Default (Section 1008).
Additional Provisions
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the holders, unless such holders shall have
offered to the Trustee reasonable indemnity (Section 601). Subject to such
provisions for the indemnification of the Trustee and certain other conditions,
the holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the Debt
Securities of that series (Section 512).
No holder of any Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless: (i) such holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to Debt Securities
of that series; (ii) the holders of not less than 25% in aggregate principal
amount of the Outstanding Debt Securities of that series shall have made written
request, and offered reasonable indemnity, to the Trustee to institute such
proceeding as trustee; (iii) the Trustee shall have failed to institute such
proceeding within 60 days after receipt of such written request; and (iv) the
Trustee shall not have received from the holders of a majority in principal
amount of the Outstanding Debt Securities of that series a direction
inconsistent with such request (Section 507). However, the holder of any Debt
Security will have an absolute right to receive payment of the principal of (and
premium, if any) and interest on such Debt Security on the due dates expressed
in such Debt Security and to institute suit for the enforcement of any such
payment (Section 508).
Concerning the Trustee
NCB has, from time to time, engaged in transactions with the Trustee in the
ordinary course of its business.
PLAN OF DISTRIBUTION
NCB may sell Debt Securities to or through underwriters and also may sell
Debt Securities directly to other purchasers or through agents. Such
underwriters may include Goldman, Sachs & Co. and Morgan Stanley & Co.
Incorporated, or a group of underwriters represented by firms including Goldman,
Sachs & Co. and Morgan Stanley & Co. Incorporated. Goldman, Sachs & Co. and
Morgan Stanley & Co. Incorporated may also act as agents.
The distribution of the Debt Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed, or
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters may receive
compensation from NCB or from purchasers of Debt Securities for whom they may
act as agents in the form of discounts, concessions or commissions. Underwriters
may sell Debt Securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions from the purchasers for whom they may act as
agents. Underwriters,
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<PAGE>
dealers and agents that participate in the distribution of Debt Securities may
be deemed to be underwriters, and any discounts or commissions received by them
from NCB and any profit on the resale of Debt Securities by them may be deemed
to be underwriting discounts and commissions, under the Securities Act. Any such
underwriter or agent will be identified, and any such compensation received from
NCB will be described, in the Prospectus Supplement.
Under agreements which may be entered into by NCB, underwriters and agents
who participate in the distribution of Debt Securities may be entitled to
indemnification by NCB against certain liabilities, including liabilities under
the Securities Act.
If so indicated in the Prospectus Supplement, NCB will authorize
underwriters or other persons acting as NCB's agents to solicit offers by
certain institutions to purchase Debt Securities from NCB pursuant to contracts
providing for payment and delivery on a future date. Institutions with which
such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases such institutions must be approved by
NCB. The obligations of any purchaser under any such contract will be subject to
the condition that the purchase of the Offered Debt Securities shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which such
purchaser is subject. The underwriters and such other agents will not have any
responsibility in respect of the validity or performance of such contracts.
VALIDITY OF THE DEBT SECURITIES
The validity of the Debt Securities offered hereby and other legal matters
will be passed upon for NCB by Shea & Gardner, Washington, D.C. The validity of
the Debt Securities will be passed upon for the underwriters or agents by Brown
& Wood LLP, New York, New York.
EXPERTS
The financial statements incorporated in this prospectus by reference from
NCB's Annual Report on Form 10-K for the year ended December 31, 1995 have been
audited by Deloitte & Touche LLP, independent auditors, as stated in their
report which is incorporated herein by reference, and have been so incorporated
in reference upon the report of such firm given upon their authority as experts
in accounting and auditing.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following statement sets forth the estimated amounts of expenses to be
borne by NCB in connection with the distribution of the securities offered
hereby:
Securities and Exchange Commission registration fee $ 30,303.03
Accounting fees and expenses 25,000.00
Legal fees and expenses 127,000.00
Trustee's fees and expenses 10,000.00
Printing and engraving expenses 10,000.00
Rating Agency fees 65,000.00
Miscellaneous expenses 17,000.00
Total $284,303.03
Item 15. Indemnification of Directors and Officers
Article IX of the bylaws of the National Consumer Cooperative Bank provides
as follows:
INDEMNIFICATION/INSURANCE
Section 9.1 Action, Etc., Other Than by or in the Right of the Bank.
The Bank shall indemnify any 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 or investigation, whether civil, criminal
or administrative, and whether external or internal to the Bank other
than a judicial action or suit brought by or in the right of the Bank,
by reason of the fact that he or she is or was a director, officer,
employee, or trustee of the Bank or is or was serving at the specific
written request of the Bank as a director, officer, employee or
trustee of another corporation, partnership, joint venture, trust or
other enterprise (all such persons being referred to hereafter as an
"Agent"), against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred
by him or her in connection with such action, suit or proceeding if he
or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Bank,
and with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her 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 person
did not act in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the Bank,
and, with respect to any criminal action or proceeding, that he or she
had reasonable cause to believe that his or her conduct was unlawful.
Section 9.2 Action, Etc., by or in the Right of the Bank.
The Bank shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
judicial action or suit brought by or in the right of the Bank to
procure a judgment in its favor by reason of the fact that he or she
is or was an Agent (as defined above) against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such action or suit if he
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or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Bank,
except that no indemnification shall be made with respect to any
claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the performance
of his or her duty to the Bank unless and only to the extent that 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 the court
shall deem proper.
Section 9.3 Determination of Right of Indemnification.
Any indemnification under Section 9.1 or 9.2 (unless ordered by a
court) shall be made by the Bank unless a determination is reasonably
and promptly made (i) by the Board by a vote of two-thirds of a quorum
consisting of directors who were not parties to such action, suit or
proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (iii) by the
stockholders, that such person acted in bad faith and in a manner that
such person did not believe to be in or not opposed to the best
interests of the Bank, or with respect to any criminal proceeding,
that such person believed or had reasonable cause to believe that his
or her conduct was unlawful.
Section 9.4 Indemnification Against Expenses of Successful Party.
Notwithstanding the other provisions of this Article, to the
extent that an Agent has been successful on the merits or otherwise,
including the dismissal of an action without prejudice or the
settlement of an action without admission of liability, in defense of
any proceeding or in the defense of any claim, issue or matter
therein, such Agent shall be indemnified against all expenses incurred
in connection therewith.
Section 9.5 Advances of Expenses.
Except as limited by Section 6 of this Article, expenses incurred
in any action, suit, proceeding, or investigation shall be paid by the
Bank in advance of the final disposition of such matter, if the Agent
shall undertake to repay such amount in the event that it is
ultimately determined, as provided herein, that such person is not
entitled to indemnification. Notwithstanding the foregoing, no advance
shall be made by the Bank if a determination is reasonably and
promptly made by the Board of directors by a vote of two-thirds of a
quorum of disinterested directors, or (if such a quorum is not
obtainable or, even if obtainable, a quorum of disinterested
directors, so directs) by independent legal counsel in a written
opinion, that, based upon the facts known to the Board or counsel at
the time such determination is made, such person acted in bad faith
and in a manner that such person did not believe to be in or not
opposed to the best interest of the Bank, or with respect to any
criminal proceeding, that such person believed or had reasonable cause
to believe his or her conduct was unlawful. In no event shall any
advance be made in instances where the Board or independent legal
counsel reasonably determined that such person deliberately breached
his or her duty to the Bank or its shareholders.
Section 9.6 Right of Agent to Indemnification Upon Application:
Procedure Upon Application.
Any indemnification under Sections 9.2, 9.3 and 9.4, or advance
under Section 9.5 of this Article, shall be made promptly, and in any
event within ninety (90) days, upon the written request of the Agent,
unless with respect to applications under Section 9.2, 9.3, or 9.5, a
determination is reasonably and promptly made by the Board of
Directors by a vote of two-thirds
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of a quorum of disinterested directors that such Agent acted in a
manner set forth in such Sections as to justify the Bank's not
indemnifying or making an advance to the Agent. In the event no quorum
of disinterested directors is obtainable, the Board of Directors shall
promptly direct that independent legal counsel shall decide whether
the Agent acted in the manner set forth in such Sections as to justify
the Bank's not indemnifying or making an advance to the Agent. The
right to indemnification or advances as granted by this Article shall
be enforceable by the Agent in any court of competent jurisdiction, if
the Board or independent legal counsel denies the claim, in whole or
in part, or if no disposition of such claim is made within ninety (90)
days. The Agent's expense incurred in connection with successfully
establishing his or her right to indemnification, in whole or in part,
in any such proceeding shall also be indemnified by the Bank.
Section 9.7 Other Rights and Remedies.
The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which an Agent seeking
indemnification may be entitled under any bylaws, agreement, vote of
stockholders or disinterested directors or otherwise, both as to
action in his or her official capacity and as to action in another
capacity while holding such office, and shall continue as to a person
who has ceased to be an Agent and shall inure to the benefit of the
heirs, executors and administrators of such person. All rights to
indemnification under this Article shall be deemed to be provided by a
contract between the Bank and the Agent who serves in such capacity at
any time while these Bylaws and other relevant provisions of the
general corporation law and other applicable law, if any, are in
effect. Any repeal or modification thereof shall not affect any rights
or obligations then existing.
Section 9.8 Insurance.
Upon resolution passed by the Board, the Bank may purchase and
maintain insurance on behalf of any person who is or was Agent against
any liability asserted against him or her and incurred by him or her
in any such capacity, or arising out of his or her status as such,
whether or not the Bank would have the power to indemnify him or her
against such liability under the provisions of this Article.
Section 9.9 Other Enterprises, Fines, and Serving at Bank's Request.
For purposes of this Article, references to "other enterprise" in
Section 9.1 shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at
the specific written request of the Bank" shall include any service as
a director, officer, employee, or trustee of the corporation which
imposes duties on, or involves services by, such director, officer,
employee, or trustee, with respect to any employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith
and in a manner he or she reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interest
of the Bank" as referred to in this Article.
Section 9.10 Savings Clause.
If this Article or any portion thereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Bank shall
nevertheless indemnify each Agent as to expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement with respect to
any action, suit, proceeding or investigation whether civil, criminal
or administrative, and whether internal or external, including a grand
jury proceeding and an action or suit brought by or in the
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<PAGE>
right of the Bank, to the full extent permitted by any application
portion of this Article that shall not have been invalidated, or by
any other applicable law.
The Reliance Insurance Company has issued to NCB an officers and
directors insurance policy which provides insurance coverage to NCB's
directors and officers for specified liabilities and to NCB for amounts
paid to the directors and officers as indemnification for specified
liabilities. The coverage afforded by the policy is subject to various
standard exclusions, including exclusions of claims arising from dishonest
or fraudulent acts, self-dealing by the directors and officers, and various
intentional torts. The maximum aggregate limits of liability under the
policy are $10 million.
Item 16. Exhibits
1. Form of Distribution Agreement
4.1 Form of Indenture
4.2 Form of Fixed Rate Note
4.3 Form of Floating Rate Note
5. Opinion of Shea & Gardner
12. Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Deloitte & Touche LLP
23.3 Consent of Shea & Gardner (contained in Exhibit 5)
24.* Powers of Attorney
25. Form T-1 Statement of Eligibility of Trustee
- ----------
* Previously filed.
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Item 17. Undertakings
The undersigned registrant hereby undertakes:
1. That for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
2. (a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change
to such information in the registration statement, (b) that, for the
purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof, and (c) to remove from registration by means of a
post-effective amendment any of the securities which remain unsold at the
termination of the offering.
3. That insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the registrant pursuant to the foregoing provisions, the
registrant has been informed that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid by a
director, officer or person controlling the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or person controlling the registrant in connection with the
securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of
such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, NCB certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Washington, D.C. on the 21th day of January, 1997.
NATIONAL CONSUMER COOPERATIVE BANK
By: _______________________________
Charles E. Snyder
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated on the 21st day of January, 1997:
Name and Signature Title
* Chairman of the Board and
- ---------------------------------------------- Director
Thomas D. Henrion
Managing Director
- ---------------------------------------------- (Principal Financial Officer)
Richard L. Reed
Vice President (Principal
- ---------------------------------------------- Accounting Officer)
Patricia A. Ferrick
* Director
- ----------------------------------------------
Leo H. Barlow
* Director
- ----------------------------------------------
Harry J. Bowie
* Director
- ----------------------------------------------
Joseph Cabral
* Director
- ----------------------------------------------
Marilyn J. McQuaide
* Director
- ----------------------------------------------
James L. Burns, Jr.
* Director
- ----------------------------------------------
Terry Lewis
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Name and Signature Title
* Director
- ----------------------------------------------
Alfred A. Plamann
* Director
- ----------------------------------------------
Mary Ann Rothman
* Director
- ----------------------------------------------
Anthony J. Scallon
* Director
- ----------------------------------------------
Sheila A. Smith
* Director
- ----------------------------------------------
Wally Smith
* Director
- ----------------------------------------------
Robert L. Thompson
* By: ________________________________________
Richard L. Reed
(Attorney-in-Fact)
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EXHIBIT INDEX
Exhibit
No. Description
1. Form of Distribution Agreement
4.1 Form of Indenture
4.2 Form of Fixed Rate Note
4.3 Form of Floating Rate Note
5. Opinion of Shea & Gardner
12. Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Deloitte & Touche LLP
23.3 Consent of Shea & Gardner (contained in Exhibit 5)
24.* Powers of Attorney
25. Form T-1 Statement of Eligibility of Trustee
- ----------
* Previously filed
<PAGE>
EXHIBIT 1
NATIONAL CONSUMER COOPERATIVE BANK
$100,000,000
MEDIUM-TERM NOTES
DUE FROM 9 MONTHS TO 30 YEARS FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
______________, 1997
Goldman, Sachs & Co.
85 Broad Street,
New York, New York 10004
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
National Consumer Cooperative Bank, a financial institution organized
pursuant to the laws of the United States (the "Bank"), proposes to issue and
sell from time to time its Medium-Term Notes due from 9 Months to 30 Years from
the Date of Issue (the "Securities") in an aggregate amount up to $100,000,000
and agrees with each of you (individually, an "Agent", and together, the
"Agents") as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the reservation by
the Bank of the right to sell Securities directly on its own behalf, the Bank
hereby (i) appoints each Agent as an agent of the Bank for the purpose of
soliciting and receiving offers to purchase Securities from the Bank pursuant to
Section 2(a) hereof and (ii) agrees that, except as otherwise contemplated
herein, whenever it determines to sell Securities directly to any Agent as
principal, it will enter into a separate agreement (each a "Terms Agreement"),
substantially in the form of Annex I hereto, relating to such sale in accordance
with Section 2(b) hereof. This Distribution Agreement shall not be construed to
create either an obligation on the part of the Bank to sell any Securities or an
obligation of any of the Agents to purchase Securities as principal.
The Securities will be issued under an indenture, dated as of January 15,
1997 (the "Indenture"), between the Bank and The First National Bank of Chicago,
as Trustee (the "Trustee"). The Securities shall have the maturity ranges,
interest rates, if any, redemption provisions and other terms set forth in the
Prospectus referred to below as it may be amended or supplemented from time to
time. The Securities will be issued, and the terms and rights thereof
established, from time to time by the Bank in accordance with the Indenture.
<PAGE>
1. The Bank represents and warrants to, and agrees with, each Agent that:
(a) A registration statement on Form S-3 (File No. 333-17003) in
respect of the Securities and a pre-effective amendment thereto have been
filed with the Securities and Exchange Commission (the "Commission"); such
registration statement (as amended) and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to such
Agent, excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus included therein,
have been declared effective by the Commission in such form; no other
document with respect to such registration statement (as amended) or
document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than the prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act, each in the form heretofore delivered to the
Agents); and no stop order suspending the effectiveness of such
registration statement (as amended) has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement (as amended)
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act, are hereinafter called a
"Preliminary Prospectus"; the various parts of such registration statement,
including all exhibits thereto and the documents incorporated by reference
in the prospectus contained in the registration statement at the time such
part of the registration statement became effective but excluding Form T-1,
each as amended at the time such part of the registration statement became
effective, is hereinafter collectively called the "Registration Statement";
the prospectus (including, if applicable, any prospectus supplement)
relating to the Securities, in the form in which it has most recently been
filed, or transmitted for filing, with the Commission on or prior to the
date of this Agreement, is hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to the applicable form under the Act, as of the date of
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus, including any supplement to the Prospectus that sets forth
only the terms of a particular issue of the Securities (a "Pricing
Supplement"), shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated therein by reference; any reference to
any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Bank filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement;
and any reference to the Prospectus as amended or supplemented shall be
deemed to refer to and include the Prospectus as amended or supplemented
(including by the applicable Pricing Supplement filed in accordance with
Section 4(a) hereof) in relation to Securities to be sold pursuant to this
Agreement, in the form filed or transmitted for filing with the Commission
pursuant to Rule 424(b) under the Act and in accordance with Section 4(a)
hereof, including any documents incorporated by reference therein as of the
date of such filing);
2
<PAGE>
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, 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 not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, 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 or necessary to make the statements therein
not misleading;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission thereunder
and 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 not misleading; PROVIDED, HOWEVER, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Bank by
any Agent expressly for use in the Prospectus as amended or supplemented to
relate to a particular issuance of Securities;
(d) Neither the Bank 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 the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or long-term
debt of the Bank 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,
stockholders' equity or results of operations of the Bank and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(e) The Bank is a corporation duly organized, validly existing and in
good standing under the laws of the United States and has full power and
authority to conduct its business as such and as described in the
Prospectus;
3
<PAGE>
(f) The Bank has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Bank have
been duly and validly authorized and issued and are fully paid and
non-assessable;
(g) The Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement and any Terms Agreement, will have
been duly executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Bank entitled to the benefits
provided by the Indenture, which will be substantially in the form filed as
an exhibit to the Registration Statement; the Indenture has been duly
authorized and duly qualified under the Trust Indenture Act and constitutes
a valid and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture conforms and the Securities of any particular issuance of
Securities will conform to the descriptions thereof contained in the
Prospectus as amended or supplemented to relate to such issuance of
Securities;
(h) The issue and sale of the Securities, the compliance by the Bank
with all of the provisions of the Securities, the Indenture, this Agreement
and any Terms Agreement, and the consummation of the transactions herein
and therein contemplated 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 Bank is a party or by which the Bank
is bound or to which any of the property or assets of the Bank is subject,
nor will such action result in any violation of the provisions of the
National Consumer Cooperative Bank Act, as amended (the "NCCBA"), or the
By-laws of the Bank or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Bank or
any of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency
or body is required for the solicitation of offers to purchase Securities,
the issue and sale of the Securities or the consummation by the Bank of the
other transactions contemplated by this Agreement, any Terms Agreement or
the Indenture, except such as have been, or will have been prior to the
Commencement Date (as defined in Section 3 hereof), obtained under the Act
or the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the solicitation by such Agent of
offers to purchase Securities from the Bank and with purchases of
Securities by such Agent as principal, as the case may be, in each case in
the manner contemplated hereby;
(i) The Bank is not in violation of the NCCBA, none of the Bank's
subsidiaries is in violation of its respective Certificate of Incorporation
or Charter, as the case may be, and neither the Bank nor any of its
subsidiaries is in violation of its By-laws or in default in the
performance or observance of any material obligation, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease
or
4
<PAGE>
other agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
(j) The statements set forth in the Prospectus under the captions
"Description of Debt Securities" and "Description of Notes", insofar as
they purport to constitute a summary of the terms of the Securities, under
the caption "Certain United States Federal Income Tax Considerations", and
under the captions "Plan of Distribution" and "Supplemental Plan of
Distribution", insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and fair;
(k) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Bank or any of its
subsidiaries is a party or to which any property of the Bank or any of its
subsidiaries is subject, which, if determined adversely to the Bank or any
of its subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the Bank and its
subsidiaries, and, to the best of the Bank's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others;
(l) The Bank is not and, after giving effect to each offering and
sale of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(m) Neither the Bank nor any of its affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba within
the meaning of Section 517.075, Florida Statutes;
(n) Immediately after any sale of Securities by the Bank hereunder or
under any Terms Agreement, the aggregate amount of Securities which shall
have been issued and sold by the Bank hereunder or under any Terms
Agreement and of any debt securities of the Bank (other than such
Securities) that shall have been issued and sold pursuant to the
Registration Statement will not exceed the amount of debt securities
registered under the Registration Statement;
(o) The amount of the Bank's outstanding bonds, debentures, notes and
other evidences of indebtedness, including the $100,000,000 aggregate
amount of Securities, does not exceed ten times the paid-in capital and
surplus of the Bank; and
(p) Deloitte & Touche LLP, who have certified certain financial
statements of the Bank and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
5
<PAGE>
2. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, each
of the Agents hereby severally and not jointly agrees, as agent of the
Bank, to use its reasonable efforts to solicit and receive offers to
purchase the Securities from the Bank upon the terms and conditions set
forth in the Prospectus as amended or supplemented from time to time. So
long as this Agreement shall remain in effect with respect to any Agent,
the Bank shall not, without the consent of such Agent, solicit or accept
offers to purchase, or sell, any debt securities with a maturity at the
time of original issuance of 9 months to 30 years except pursuant to this
Agreement, any Terms Agreement, or except pursuant to a private placement
not constituting a public offering under the Act or except in connection
with a firm commitment underwriting pursuant to an underwriting agreement
that does not provide for a continuous offering of medium-term debt
securities. However, the Bank reserves the right to sell, and may solicit
and accept offers to purchase, Securities directly on its own behalf in
transactions with persons other than broker-dealers, and, in the case of
any such sale not resulting from a solicitation made by any Agent, no
commission will be payable with respect to such sale. These provisions
shall not limit Section 4(f) hereof or any similar provision included in
any Terms Agreement.
Procedural details relating to the issue and delivery of Securities,
the solicitation of offers to purchase Securities and the payment in each
case therefor shall be as set forth in the Administrative Procedure
attached hereto as Annex II as it may be amended from time to time by
written agreement between the Agents and the Bank (the "Administrative
Procedure"). The provisions of the Administrative Procedure shall apply to
all transactions contemplated hereunder other than those made pursuant to a
Terms Agreement. Each Agent and the Bank agree to perform the respective
duties and obligations specifically provided to be performed by each of
them in the Administrative Procedure. The Bank will furnish to the Trustee
a copy of the Administrative Procedure as from time to time in effect.
The Bank reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Securities. As soon as practicable,
but in any event not later than one business day in New York City, after
receipt of notice from the Bank, the Agents will suspend solicitation of
offers to purchase Securities from the Bank until such time as the Bank has
advised the Agents that such solicitation may be resumed. During such
period, the Bank shall not be required to comply with the provisions of
Sections 4(h), 4(i), 4(j) and 4(k). Upon advising the Agents that such
solicitation may be resumed, however, the Bank shall simultaneously provide
the documents required to be delivered by Sections 4(h), 4(i), 4(j) and
4(k), and the Agents shall have no obligation to solicit offers to purchase
the Securities until such documents have been received by the Agents. In
addition, any failure by the Bank to comply with its obligations hereunder,
including without limitation its obligations to deliver the documents
required by Sections 4(h), 4(i), 4(j) and 4(k), shall automatically
terminate the Agents' obligations hereunder, including
6
<PAGE>
without limitation its obligations to solicit offers to purchase the
Securities hereunder as agent or to purchase Securities hereunder as
principal.
The Bank agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Bank as a result of a
solicitation made by such Agent, in an amount equal to the following
applicable percentage of the principal amount of such Security sold:
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
------------------- -------------------
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .675%
From 20 years to 30 years .750%
(b) Each sale of Securities to any Agent as principal shall be made
in accordance with the terms of this Agreement and (unless the Bank and
such Agent shall otherwise agree) a Terms Agreement which will provide for
the sale of such Securities to, and the purchase thereof by, such Agent; a
Terms Agreement may also specify certain provisions relating to the
reoffering of such Securities by such Agent; the commitment of any Agent to
purchase Securities as principal, whether pursuant to any Terms Agreement
or otherwise, shall be deemed to have been made on the basis of the
representations and warranties of the Bank herein contained and shall be
subject to the terms and conditions herein set forth; each Terms Agreement
shall specify the principal amount of Securities to be purchased by any
Agent pursuant thereto, the price to be paid to the Bank for such
Securities, any provisions relating to rights of, and default by,
underwriters acting together with such Agent in the reoffering of the
Securities and the time and date and place of delivery of and payment for
such Securities; and such Terms Agreement shall also specify any
requirements for opinions of counsel, accountants' letters and officers'
certificates pursuant to Section 4 hereof. Each Agent proposes to offer
Securities purchased by it as principal for sale at prevailing market
prices or prices related thereto at the time of sale, which may be equal
to, greater than or less than the price at which such Securities are
purchased by such Agent from the Bank.
7
<PAGE>
For each sale of Securities to an Agent as principal that is not made
pursuant to a Terms Agreement, the procedural details relating to the issue
and delivery of such Securities and payment therefor shall be as set forth
in the Administrative Procedure. For each such sale of Securities to an
Agent as principal that is not made pursuant to a Terms Agreement, the Bank
agrees to pay such Agent a commission (or grant an equivalent discount) as
provided in Section 2(a) hereof and in accordance with the schedule set
forth therein.
Each time and date of delivery of and payment for Securities to be
purchased by an Agent as principal, whether set forth in a Terms Agreement
or in accordance with the Administrative Procedure, is referred to herein
as a "Time of Delivery".
(c) Each Agent agrees, with respect to any Security denominated in a
currency other than U.S. dollars, as agent, directly or indirectly, not to
solicit offers to purchase, and as principal under any Terms Agreement or
otherwise, directly or indirectly, not to offer, sell or deliver, such
Security in, or to residents of, the country issuing such currency, except
as permitted by applicable law.
3. The documents required to be delivered pursuant to Section 6 hereof on
the Commencement Date (as defined below) shall be delivered to the Agents at the
offices of Brown & Wood LLP, New York, New York, at 11:00 a.m., New York City
time, on the date of this Agreement, which date and time of such delivery may be
postponed by agreement between the Agents and the Bank but in no event shall be
later than the day prior to the date on which solicitation of offers to purchase
Securities is commenced or on which any Terms Agreement is executed (such time
and date being referred to herein as the "Commencement Date").
4. The Bank covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date which shall
be disapproved by any Agent promptly after reasonable notice thereof or (B)
after the date of any Terms Agreement or other agreement by an Agent to
purchase Securities as principal and prior to the related Time of Delivery
which shall be disapproved by any Agent party to such Terms Agreement or so
purchasing as principal promptly after reasonable notice thereof; (ii) to
prepare, with respect to any Securities to be sold through or to such Agent
pursuant to this Agreement, a Pricing Supplement with respect to such
Securities in a form previously approved by such Agent and to file such
Pricing Supplement pursuant to Rule 424(b)(3) under the Act not later than
the close of business of the Commission on the fifth business day after the
date on which such Pricing Supplement is first used; (iii) to make no
amendment or supplement to the Registration Statement or Prospectus, other
than any Pricing Supplement, at any time prior to having afforded each
Agent a reasonable opportunity to review and comment thereon; (iv) to file
promptly all reports
8
<PAGE>
and any definitive proxy or information statements required to be filed
by the Bank with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Securities, and
during such same period to advise such Agent, promptly after the Bank
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or has become effective or any
supplement to the Prospectus or any amended Prospectus (other than any
Pricing Supplement that relates to Securities not purchased through or by
such Agent) has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Securities, 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 amendment or
supplement of the Registration Statement or Prospectus or for additional
information; and (v) in the event of the issuance of any such stop order
or of any such order preventing or suspending the use of any such
prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as such Agent may
reasonably request to qualify the Securities for offering and sale under
the securities laws of such jurisdictions as such Agent may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein for as long as may be necessary to complete the distribution or
sale of the Securities; PROVIDED, HOWEVER, that in connection therewith the
Bank shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(c) To furnish such Agent with copies of the Registration Statement
and each amendment thereto, with copies of the Prospectus as each time
amended or supplemented, other than any Pricing Supplement (except as
provided in the Administrative Procedure), in the form in which it is filed
with the Commission pursuant to Rule 424 under the Act, and with copies of
the documents incorporated by reference therein, all in such quantities as
such Agent may reasonably request from time to time; and, if the delivery
of a prospectus is required at any time in connection with the offering or
sale of the Securities (including Securities purchased from the Bank by
such Agent as principal) and if at such time any event 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 Act, the Exchange Act or the
Trust Indenture Act, to notify such Agent and request such Agent, in its
capacity as agent of the Bank, to suspend solicitation of offers to
purchase Securities from the Bank (and, if so notified, such Agent shall
cease such solicitations as soon as practicable, but in any event not later
than one business day
9
<PAGE>
later); and if the Bank shall decide to amend or supplement the
Registration Statement or the Prospectus as then amended or supplemented,
to so advise such Agent promptly by telephone (with confirmation in
writing) and to prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
the Prospectus as then amended or supplemented that will correct such
statement or omission or effect such compliance; PROVIDED, HOWEVER, that
if during such same period such Agent continues to own Securities
purchased from the Bank by such Agent as principal or such Agent is
otherwise required to deliver a prospectus in respect of transactions in
the Securities, the Bank shall promptly prepare and file with the
Commission such an amendment or supplement;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Bank and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Bank, Rule 158);
(e) So long as any Securities are outstanding, to furnish to such
Agent copies of all reports or other communications (financial or other)
furnished to stockholders, and deliver to such Agent (i) as soon as they
are available, copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange on which
any class of securities of the Bank is listed; and (ii) such additional
information concerning the business and financial condition of the Bank as
such Agent may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Bank and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(f) That, from the date of any Terms Agreement with such Agent or
other agreement by such Agent to purchase Securities as principal and
continuing to and including the later of (i) the termination of the trading
restrictions for the Securities purchased thereunder, as notified to the
Bank by such Agent and (ii) the related Time of Delivery, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Bank which both mature more than 9 months after such Time of Delivery and
are substantially similar to the Securities, without the prior written
consent of such Agent;
(g) That each acceptance by the Bank of an offer to purchase
Securities hereunder (including any purchase by such Agent as principal not
pursuant to a Terms Agreement), and each execution and delivery by the Bank
of a Terms Agreement with such Agent, shall be deemed to be an affirmation
to such Agent that the representations and warranties of the Bank contained
in or made pursuant to this Agreement are true and correct as of the date
of such acceptance or of such Terms Agreement, as the case may be, as
though made at and as of such date, and an undertaking that such
representations and warranties will be true and correct as of the
settlement date for the Securities relating
10
<PAGE>
to such acceptance or as of the Time of Delivery relating to such sale,
as the case may be, as though made at and as of such date (except that
such representations and warranties shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented
relating to such Securities);
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented (other than by
a Pricing Supplement), each time a document filed under the Act or the
Exchange Act is incorporated by reference into the Prospectus, and each
time the Bank sells Securities to such Agent as principal pursuant to a
Terms Agreement and such Terms Agreement specifies the delivery of an
opinion or opinions by Brown & Wood LLP, counsel to the Agents, as a
condition to the purchase of Securities pursuant to such Terms Agreement,
the Bank shall furnish to such counsel such papers and information as they
may reasonably request to enable them to furnish to such Agent the opinion
or opinions referred to in Section 6(b) hereof;
(i) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), each time
a document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus and each time the Bank sells Securities to
such Agent as principal pursuant to a Terms Agreement and such Terms
Agreement specifies the delivery of an opinion under this Section 4(i) as a
condition to the purchase of Securities pursuant to such Terms Agreement,
the Bank shall furnish or cause to be furnished forthwith to such Agent a
written opinion of Shea & Gardner, counsel for the Bank, or other counsel
for the Bank satisfactory to such Agent, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to such sale, as the
case may be, in form satisfactory to such Agent, to the effect that such
Agent may rely on the opinion of such counsel referred to in Section 6(c)
hereof which was last furnished to such Agent to the same extent as though
it were dated the date of such letter authorizing reliance (except that the
statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to
such date) or, in lieu of such opinion, an opinion of the same tenor as the
opinion of such counsel referred to in Section 6(c) hereof but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date;
(j) That each time the Registration Statement or the Prospectus shall
be amended or supplemented and each time that a document filed under the
Act or the Exchange Act is incorporated by reference into the Prospectus,
in either case to set forth financial information included in or derived
from the Bank's consolidated financial statements or accounting records,
and each time the Bank sells Securities to such Agent as principal pursuant
to a Terms Agreement and such Terms Agreement specifies the delivery of a
letter under this Section 4(j) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Bank shall cause the independent
certified public accountants who have certified the financial statements of
the Bank and its subsidiaries included or incorporated by reference in the
Registration Statement forthwith to furnish such Agent
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a letter, dated the date of such amendment, supplement, incorporation or
Time of Delivery relating to such sale, as the case may be, in form
satisfactory to such Agent, of the same tenor as the letter referred to
in Section 6(d) hereof but modified to relate to the Registration
Statement and the Prospectus as amended or supplemented to the date of
such letter, with such changes as may be necessary to reflect changes in
the financial statements and other information derived from the
accounting records of the Bank, to the extent such financial statements
and other information are available as of a date not more than five
business days prior to the date of such letter; PROVIDED, HOWEVER, that,
with respect to any financial information or other matter, such letter
may reconfirm as true and correct at such date as though made at and as
of such date, rather than repeat, statements with respect to such
financial information or other matter made in the letter referred to in
Section 6(d) hereof which was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), each time
a document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus and each time the Bank sells Securities to
such Agent as principal and the applicable Terms Agreement specifies the
delivery of a certificate under this Section 4(k) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the Bank shall
furnish or cause to be furnished forthwith to such Agent a certificate,
dated the date of such supplement, amendment, incorporation or Time of
Delivery relating to such sale, as the case may be, in such form and
executed by such officers of the Bank as shall be satisfactory to such
Agent, to the effect that the statements contained in the certificates
referred to in Section 6(h) hereof which was last furnished to such Agent
are true and correct at such date as though made at and as of such date
(except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date) or,
in lieu of such certificate, certificates of the same tenor as the
certificates referred to in said Section 6(h) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to
such date;
(l) To offer to any person who has agreed to purchase Securities from
the Bank as the result of an offer to purchase solicited by such Agent the
right to refuse to purchase and pay for such Securities if, on the related
settlement date fixed pursuant to the Administrative Procedure, any
condition set forth in Section 6(a), 6(e), 6(f) or 6(g) hereof shall not
have been satisfied (it being understood that the judgment of such person
with respect to the impracticability or inadvisability of such purchase of
Securities shall be substituted, for purposes of this Section 4(l), for the
respective judgments of an Agent with respect to certain matters referred
to in such Sections 6(e) and 6(g), and that such Agent shall have no duty
or obligation whatsoever to exercise the judgment permitted under such
Sections 6(e) and 6(g) on behalf of any such person); and
(m) To include in its filings made under the Exchange Act such
disclosure as is required by the Commission pursuant to its letter to the
Bank dated January 15, 1997, as and when required by such letter.
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5. The Bank covenants and agrees with each Agent that the Bank will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the
Bank's counsel and accountants in connection with the registration of the
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus, the Prospectus and any Pricing Supplements and all other amendments
and supplements thereto and the mailing and delivering of copies thereof to such
Agent; (ii) the fees, disbursements and expenses of counsel for the Agents in
connection with the establishment of the program contemplated hereby, any
opinions to be rendered by such counsel hereunder and under any Terms Agreement
and the transactions contemplated hereunder and under any Terms Agreement;
(iii) the cost of printing, producing or reproducing this Agreement, any Terms
Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iv) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 4(b)
hereof, including the fees and disbursements of counsel for the Agents in
connection with such qualification and in connection with the Blue Sky and legal
investment surveys; (v) any fees charged by securities rating services for
rating the Securities; (vi) any filing fees incident to, and the fees and
disbursements of counsel for the Agents in connection with, any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of the Securities; (vii) the cost of preparing the Securities; (viii) the fees
and expenses of any Trustee and any agent of any Trustee and any transfer or
paying agent of the Bank and the fees and disbursements of counsel for any
Trustee or such agent in connection with any Indenture and the Securities; (ix)
any advertising expenses connected with the solicitation of offers to purchase
and the sale of Securities so long as such advertising expenses have been
approved by the Bank; and (x) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. Except as provided in Sections 7 and 8 hereof,
each Agent shall pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Bank, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the Bank herein (and, in the case of an obligation of an Agent
under a Terms Agreement, in or incorporated by reference in such Terms
Agreement) are true and correct at and as of the Commencement Date and any
applicable date referred to in Section 4(k) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at and as of such
Solicitation Time or Time of Delivery, as the case may be, the condition that
prior to such Solicitation Time or Time of Delivery, as the case may be, the
Bank shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the Prospectus
as amended or supplemented (including the Pricing Supplement) with respect
to such Securities shall have been filed
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with the Commission pursuant to Rule 424(b) under the Act within the
applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 4(a) hereof;
(ii) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and (iii) all
requests for additional information on the part of the Commission shall
have been complied with to the reasonable satisfaction of such Agent;
(b) Brown & Wood LLP, counsel to the Agents, shall have furnished to
such Agent (i) such opinion or opinions, dated the Commencement Date, with
respect to the matters covered in paragraphs (i), (ii), (iv), (vi), (x),
(xi), (xii) and (xiii) of subsection (c) below, as well as such other
related matters as such Agent may reasonably request, and (ii) if and to
the extent requested by such Agent, with respect to each applicable date
referred to in Section 4(h) hereof that is on or prior to such Solicitation
Time or Time of Delivery, as the case may be, an opinion or opinions, dated
such applicable date, to the effect that such Agent may rely on the opinion
or opinions which were last furnished to such Agent pursuant to this
Section 6(b) to the same extent as though it or they were dated the date of
such letter authorizing reliance (except that the statements in such last
opinion or opinions shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to such date) or, in any
case, in lieu of such an opinion or opinions, an opinion or opinions of the
same tenor as the opinion or opinions referred to in clause (i) but
modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date; and in each case such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Shea & Gardner, counsel for the Bank, or other counsel for the
Bank satisfactory to such Agent, shall have furnished to such Agent their
written opinions, dated the Commencement Date and each applicable date
referred to in Section 4(i) hereof that is on or prior to such Solicitation
Time or Time of Delivery, as the case may be, in form and substance
satisfactory to such Agent, to the effect that:
(i) The Bank is a financial institution duly organized, validly
existing and in good standing under the laws of the United States and
has full power and authority to conduct its business as described in
the Prospectus as amended or supplemented.
(ii) The Bank has an authorized capitalization as set forth in
the Prospectus as amended or supplemented and all of the issued shares
of capital stock of the Bank have been duly and validly authorized and
issued and are fully paid and non-assessable;
(iii) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to
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which the Bank or any of its subsidiaries is a party or to which any
property of the Bank or any of its subsidiaries is subject, which,
if determined adversely to the Bank or any of its subsidiaries,
would individually or in the aggregate have a material adverse
effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the Bank and its
subsidiaries; and to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(iv) This Agreement and any applicable Terms Agreement have been
duly authorized, executed and delivered by the Bank;
(v) The Securities have been duly authorized and, when duly
executed, authenticated, issued and delivered by the Bank, will
constitute valid and legally binding obligations of the Bank entitled
to the benefits provided by the Indenture; and the Indenture conforms
and the Securities will conform to the descriptions thereof in the
Prospectus as amended or supplemented;
(vi) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture has been
duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Securities, the compliance by
the Bank with all of the provisions of the Securities, the Indenture,
this Agreement and any applicable Terms Agreement and the consummation
of the transactions herein and therein contemplated 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 known
to such counsel to which the Bank is a party or by which the Bank is
bound or to which any of the property or assets of the Bank is
subject, nor will such action result in any violation of the
provisions of the NCCBA or the By-laws of the Bank or any statute or
any order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Bank or any
of its properties;
(viii) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body
is required for the solicitation of offers to purchase Securities, the
issue and sale of the Securities or the consummation by the Bank of
the other transactions contemplated by this Agreement, any applicable
Terms Agreement, or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under
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state securities or Blue Sky laws in connection with the
solicitation by the Agents of offers to purchase Securities from the
Bank and with purchases of Securities by an Agent as principal, as
the case may be, in each case in the manner contemplated hereby;
(ix) The Bank is not in violation of the NCCBA, none of the
Bank's subsidiaries is in violation of its respective Certificate of
Incorporation or Charter, as the case may be, and neither the Bank nor
any of its subsidiaries is in violation of its By-laws or in default
in the performance or observance of any material obligation, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound;
(x) The statements set forth in the Prospectus under the caption
"Description of Debt Securities" and "Description of Notes", insofar
as they purport to constitute a summary of the terms of the
Securities, under the caption "Certain United States Federal Income
Tax Considerations", and under the captions "Plan of Distribution" and
"Supplemental Plan of Distribution", insofar as they purport to
describe the provisions of the laws and documents referred to therein,
are accurate, complete and fair;
(xi) The Bank is not and, after giving effect to the offering
and sale of the Securities, will not be an "investment company" or an
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act;
(xii) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and they have no reason to
believe that any of such documents, when they became effective or were
so filed, as the case may be, contained, in the case of a registration
statement which became effective under the Act, an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and, in the case of other documents which were filed under
the Act or the Exchange Act with the Commission, an untrue statement
of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading; and
(xiii) The Registration Statement and the Prospectus as amended
and supplemented and any further amendments and supplements thereto
made by the
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Bank prior to the date of such opinion (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) comply as to form in all material respects
with the requirements of the Act and the Trust Indenture Act and the
rules and regulations thereunder; although they do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion in
subsection (x) of this Section 6(c), they have no reason to believe
that, as of its effective date, the Registration Statement or any
further amendment or supplement thereto made by the Bank prior to
the date of such opinion (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as of the
date of such opinion, the Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the Bank prior
to the date of such opinion (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein,
in light of the circumstances in which they were made, not
misleading; and they do not know of any amendment to the
Registration Statement required to be filed or any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or required
to be described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated by
reference or described as required.
(d) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section 4(j)
hereof that is on or prior to such Solicitation Time or Time of Delivery,
as the case may be, the independent certified public accountants who have
certified the financial statements of the Bank and its subsidiaries
included or incorporated by reference in the Registration Statement shall
have furnished to such Agent a letter, dated the Commencement Date or such
applicable date, as the case may be, in form and substance satisfactory to
such Agent, to the effect set forth in Annex III hereto;
(e) (i) Neither the Bank 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 as amended or
supplemented prior to the date of the Pricing Supplement relating to the
Securities to be delivered at the relevant Time of Delivery 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 as amended or supplemented prior to the
date of the Pricing Supplement relating to the
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Securities to be delivered at the relevant Time of Delivery and (ii)
since the respective dates as of which information is given in the
Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant
Time of Delivery there shall not have been any change in the capital
stock or long-term debt of the Bank or any of its subsidiaries 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 Bank and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant
Time of Delivery, the effect of which, in any such case described in
Clause (i) or (ii), is in the judgment of such Agent so material and
adverse as to make it impracticable or inadvisable to proceed with the
solicitation by such Agent of offers to purchase Securities from the Bank
or the purchase by such Agent of Securities from the Bank as principal,
as the case may be, on the terms and in the manner contemplated in the
Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant
Time of Delivery;
(f) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Bank's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act, 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 Bank's debt securities;
(g) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in New York declared by either
Federal or New York State authorities; or (iii) the outbreak or escalation
of hostilities involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any such event
specified in the Clause (iii) in the judgment of such Agent makes it
impracticable or inadvisable to proceed with the solicitation of offers to
purchase Securities or the purchase of the Securities from the Bank as
principal pursuant to the applicable Terms Agreement or otherwise, as the
case may be, on the terms and in the manner contemplated in the Prospectus;
(h) The Bank shall have furnished or caused to be furnished to such
Agent certificates of officers of the Bank dated the Commencement Date and
each applicable date referred to in Section 4(k) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case may be, in such
form and executed by such officers of the Bank as shall be satisfactory to
such Agent, as to the accuracy of the representations and warranties of the
Bank herein at and as of the Commencement Date or such applicable date, as
the case may be, as to the performance by the Bank of all of its
obligations hereunder to be performed at or prior to the Commencement Date
or such applicable
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date, as the case may be, as to the matters set forth in subsections (a)
and (e) of this Section 6, and as to such other matters as such Agent may
reasonably request.
7. (a) The Bank will indemnify and hold harmless each Agent against any
losses, claims, damages or liabilities, joint or several, to which such
Agent may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and will reimburse such Agent for any legal or other expenses
reasonably incurred by it in connection with investigating or defending any
such action or claim as such expenses are incurred; PROVIDED, HOWEVER, that
the Bank shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in any Preliminary Prospectus, the Registration Statement, the Prospectus,
the Prospectus as amended or supplemented or any other prospectus relating
to the Securities, or any such amendment or supplement, in reliance upon
and in conformity with written information furnished to the Bank by such
Agent expressly for use therein.
(b) Each Agent will indemnify and hold harmless the Bank against any
losses, claims, damages or liabilities to which the Bank may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement,
the Prospectus, the Prospectus as amended or supplemented or any other
prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the Prospectus as
amended or supplemented or any other prospectus relating to the Securities,
or any such amendment or supplement, in reliance upon and in conformity
with written information furnished to the Bank by such Agent expressly for
use therein; and will reimburse the Bank for any legal or other expenses
reasonably incurred by the Bank in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but
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the omission so to notify the indemnifying party shall not relieve it
from any liability which it may have to any indemnified party otherwise
than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs
of investigation. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of,
or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such
action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Bank on the
one hand and each Agent on the other from the offering of the Securities to
which such loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party
failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Bank on the one
hand and each Agent on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Bank on the one hand
and each Agent on the other shall be deemed to be in the same proportion as
the total net proceeds from the sale of Securities (before deducting
expenses) received by the Bank bear to the total commissions or discounts
received by such Agent in respect thereof. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact
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required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by the
Bank on the one hand or by any Agent on the other and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Bank and each Agent
agree that it would not be just and equitable if contribution pursuant to
this subsection (d) were determined by PER CAPITA allocation (even if all
Agents were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), an Agent shall not be required to
contribute any amount in excess of the amount by which the total public
offering price at which the Securities purchased by or through it were
sold exceeds the amount of any damages which such Agent has otherwise
been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of each of the Agents
under this subsection (d) to contribute are several in proportion to the
respective purchases made by or through it to which such loss, claim,
damage or liability (or action in respect thereof) relates and are not
joint.
(e) The obligations of the Bank under this Section 7 shall be in
addition to any liability which the Bank may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Agent within the meaning of the Act; and the obligations of
each Agent under this Section 7 shall be in addition to any liability which
such Agent may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Bank and to each person, if
any, who controls the Bank within the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the Bank
and in performing the other obligations of such Agent hereunder (other than in
respect of any purchase by an Agent as principal, pursuant to a Terms Agreement
or otherwise), is acting solely as agent for the Bank and not as principal.
Each Agent will make reasonable efforts to assist the Bank in obtaining
performance by each purchaser whose offer to purchase Securities from the Bank
was solicited by such Agent and has been accepted by the Bank, but such Agent
shall not have any liability to the Bank in the event such purchase is not
consummated for any reason. If the Bank shall default on its obligation to
deliver Securities to a purchaser whose offer it has accepted, the Bank shall
(i) hold each Agent harmless against any loss, claim or damage arising from or
as a result of such default by the Bank and (ii) notwithstanding such default,
pay to the Agent that solicited such offer any commission to which it would be
entitled in connection with such sale.
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9. The respective indemnities, agreements, representations, warranties and
other statements by any Agent and the Bank set forth in or made pursuant to this
Agreement shall remain in full force and effect regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any Agent
or any controlling person of any Agent, or the Bank, or any officer or director
or any controlling person of the Bank, and shall survive each delivery of and
payment for any of the Securities.
10. The provisions of this Agreement relating to the solicitation of
offers to purchase Securities from the Bank may be suspended or terminated at
any time by the Bank as to any Agent or by any Agent as to such Agent upon the
giving of written notice of such suspension or termination to such Agent or the
Bank, as the case may be. In the event of such suspension or termination with
respect to any Agent, (x) this Agreement shall remain in full force and effect
with respect to any Agent as to which such suspension or termination has not
occurred, (y) this Agreement shall remain in full force and effect with respect
to the rights and obligations of any party which have previously accrued or
which relate to Securities which are already issued, agreed to be issued or the
subject of a pending offer at the time of such suspension or termination and (z)
in any event, this Agreement shall remain in full force and effect insofar as
the fourth paragraph of Section 2(a), and Sections 4(d), 4(e), 5, 7, 8 and 9
hereof are concerned.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in writing,
and if to Goldman, Sachs & Co. shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to 85 Broad
Street, New York, New York 10004, Facsimile Transmission No. (212) 363-7609,
Attention: Credit Department, and if to Morgan Stanley & Co. Incorporated shall
be sufficient in all respects when delivered or sent by telex, facsimile
transmission or registered mail to 1585 Broadway, New York, New York 10036,
Facsimile Transmission No. (212) 761-0780 and if to the Bank shall be sufficient
in all respects when delivered or sent by facsimile transmission or registered
mail to 1401 Eye Street N.W., Suite 700, Washington, D.C. 20005, Facsimile
Transmission No. (202) 336-7803, Attention: Treasurer.
12. This Agreement and any Terms Agreement shall be binding upon, and
inure solely to the benefit of, each Agent and the Bank, and to the extent
provided in Sections 7, 8 and 9 hereof, the officers and directors of the Bank
and any person who controls any Agent or the Bank, and their respective personal
representatives, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any Terms Agreement. No
purchaser of any of the Securities through or from any Agent hereunder shall be
deemed a successor or assign by reason merely of such purchase.
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
22
<PAGE>
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement and any Terms Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us five counterparts hereof, whereupon this letter and the acceptance
by each of you thereof shall constitute a binding agreement between the Bank and
each of you in accordance with its terms.
Very truly yours,
National Consumer Cooperative Bank
By:
-----------------------------------
Name: Richard L. Reed
Title: Chief Financial Officer
Accepted in New York, New York,
as of the date hereof:
- -----------------------------------
(Goldman, Sachs & Co.)
Morgan Stanley & Co. Incorporated
By:
-----------------------------------
Name:
Title:
23
<PAGE>
ANNEX I
NATIONAL CONSUMER COOPERATIVE BANK
MEDIUM-TERM NOTES
DUE FROM 9 MONTHS TO 30 YEARS FROM DATE OF ISSUE
TERMS AGREEMENT
____________,____
[GOLDMAN, SACHS & CO.
85 BROAD STREET
NEW YORK, NEW YORK 10004]
[MORGAN STANLEY & CO. INCORPORATED
1585 BROADWAY
NEW YORK, NEW YORK 10036]
Ladies and Gentlemen:
National Consumer Cooperative Bank (the "Bank") proposes, subject to the
terms and conditions stated herein and in the Distribution Agreement, dated
___________, 1997 (the "Distribution Agreement"), between the Bank on the one
hand and Goldman, Sachs & Co. and Morgan Stanley & Co. Incorporated (the
"Agents") on the other, to issue and sell to Goldman, Sachs & Co. and Morgan
Stanley & Co. Incorporated the securities specified in the Schedule hereto (the
"Purchased Securities"). Each of the provisions of the Distribution Agreement
not specifically related to the solicitation by the Agents, as agents of the
Bank, of offers to purchase Securities is incorporated herein by reference in
its entirety, and shall be deemed to be part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Nothing
contained herein or in the Distribution Agreement shall make any party hereto an
agent of the Bank or make such party subject to the provisions therein relating
to the solicitation of offers to purchase Securities from the Bank, solely by
virtue of its execution of this Terms Agreement. Each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Terms Agreement, except that each representation and warranty
in Section 1 of the Distribution Agreement which makes reference to the
Prospectus shall be deemed to be a representation and warranty as of the date of
the Distribution Agreement in relation to the Prospectus (as therein defined),
and also a representation and warranty as of the date of this Terms Agreement in
relation to the Prospectus as amended and supplemented to relate to the
Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Bank agrees to
issue and sell to [GOLDMAN, SACHS & CO.]
<PAGE>
[MORGAN STANLEY & CO. INCORPORATED] and [GOLDMAN, SACHS & CO.] [MORGAN
STANLEY & CO. INCORPORATED] agrees to purchase from the Bank the Purchased
Securities, at the time and place, in the principal amount and at the purchase
price set forth in the Schedule hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us ...... counterparts hereof, and upon acceptance hereof by you this
letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Bank.
National Consumer Cooperative Bank
By:
-----------------------------------
Name:
Title:
Accepted:
[
- -----------------------------------
(GOLDMAN, SACHS & CO.)]
[MORGAN STANLEY & CO. INCORPORATED
BY:
-----------------------------------
NAME:
TITLE:]
<PAGE>
SCHEDULE TO ANNEX I
TITLE OF PURCHASED SECURITIES:
[ %] Medium-Term Notes[, SERIES ....]
AGGREGATE PRINCIPAL AMOUNT:
[$ ]
_________________
[PRICE TO PUBLIC:]
PURCHASE PRICE BY [GOLDMAN, SACHS & CO. ] [MORGAN STANLEY & CO. INCORPORATED]:
% of the principal amount of the Purchased Securities[, PLUS ACCRUED
INTEREST FROM _______________ TO _______________] [AND ACCRUED AMORTIZATION,
IF ANY, FROM _______________ TO _______________]
METHOD OF AND SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[BY CERTIFIED OR OFFICIAL BANK CHECK OR CHECKS, PAYABLE TO THE ORDER OF THE
BANK, IN IMMEDIATELY AVAILABLE FUNDS]
[BY WIRE TRANSFER TO A BANK ACCOUNT SPECIFIED BY THE BANK IN IMMEDIATELY
AVAILABLE FUNDS]
INDENTURE:
Indenture, dated as of January 15, 1997, between the Bank and The First
National Bank of Chicago, as Trustee
TIME OF DELIVERY:
CLOSING LOCATION FOR DELIVERY OF SECURITIES:
MATURITY:
INTEREST RATE:
[ %]
INTEREST PAYMENT DATES:
[MONTHS AND DATES]
I-1
<PAGE>
DOCUMENTS TO BE DELIVERED:
The following documents referred to in the Distribution Agreement shall be
delivered as a condition to the Closing:
[(1) THE OPINION OR OPINIONS OF COUNSEL TO THE AGENTS REFERRED TO IN
SECTION 4(h).]
[(2) THE OPINION OF COUNSEL TO THE BANK REFERRED TO IN SECTION 4(i).]
[(3) THE ACCOUNTANTS' LETTER REFERRED TO IN SECTION 4(j).]
[(4) THE OFFICERS' CERTIFICATE REFERRED TO IN SECTION 4(k).]
OTHER PROVISIONS (INCLUDING SYNDICATE PROVISIONS, IF APPLICABLE):
I-2
<PAGE>
ANNEX II
NATIONAL CONSUMER COOPERATIVE BANK
ADMINISTRATIVE PROCEDURE
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated ____________, 1997 (the "Distribution
Agreement"), between National Consumer Cooperative Bank (the "Bank") and
Goldman, Sachs & Co. and Morgan Stanley & Co. Incorporated (together, the
"Agents"), to which this Administrative Procedure is attached as Annex II.
Defined terms used herein and not defined herein shall have the meanings
given such terms in the Distribution Agreement, the Prospectus as amended or
supplemented or the Indenture.
The procedures to be followed with respect to the settlement of sales of
Securities directly by the Bank to purchasers solicited by an Agent, as agent,
are set forth below. The terms and settlement details related to a purchase of
Securities by an Agent, as principal, from the Bank will be set forth in a Terms
Agreement pursuant to the Distribution Agreement, unless the Bank and such Agent
otherwise agree as provided in Section 2(b) of the Distribution Agreement, in
which case the procedures to be followed in respect of the settlement of such
sale will be as set forth below. An Agent, in relation to a purchase of a
Security by a purchaser solicited by such Agent, is referred to herein as the
"Selling Agent" and, in relation to a purchase of a Security by such Agent as
principal other than pursuant to a Terms Agreement, as the "Purchasing Agent".
The Bank will advise each Agent in writing of those persons with whom such
Agent is to communicate regarding offers to purchase Securities and the related
settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a global security (a "Global Security") delivered to the
Trustee, as agent for The Depository Trust Bank (the "Depositary") and recorded
in the book-entry system maintained by the Depositary (a "Book-Entry Security")
or a certificate issued in definitive form (a "Certificated Security") delivered
to a person designated by an Agent, as set forth in the applicable Pricing
Supplement. An owner of a Book-Entry Security will not be entitled to receive a
certificate representing such a Security, except as provided in the Indenture.
Book-Entry Securities will be issued in accordance with the Administrative
Procedure set forth in Part I hereof, and Certificated Securities will be issued
in accordance with the Administrative Procedure set forth in Part II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the Trustee
will perform the custodial, document control and administrative functions
described below, in accordance with its respective
II-1
<PAGE>
obligations under a Letter of Representation from the Bank and the Trustee to
the Depositary, dated the date hereof, and a Medium-Term Note Certificate
Agreement between the Trustee and the Depositary, dated as of May 26, 1989
(the "Certificate Agreement"), and its obligations as a participant in the
Depositary, including the Depositary's Same-Day Funds Settlement System
("SDFS").
POSTING RATES BY THE BANK:
The Bank and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Bank may
establish a fixed set of interest rates and maturities for an offering period
("posting"). If the Bank decides to change already posted rates, it will
promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
ACCEPTANCE OF OFFERS BY THE BANK:
Each Agent will promptly advise the Bank by telephone or other appropriate
means of all reasonable offers to purchase Book-Entry Securities, other than
those rejected by such Agent. Each Agent may, in its discretion reasonably
exercised, reject any offer received by it in whole or in part. Each Agent also
may make offers to the Bank to purchase Book-Entry Securities as a Purchasing
Agent. The Bank will have the sole right to accept offers to purchase
Book-Entry Securities and may reject any such offer in whole or in part.
The Bank will promptly notify the Agent or Purchasing Agent, as the case
may be, of its acceptance or rejection of an offer to purchase Book-Entry
Securities. If the Bank accepts an offer to purchase Book-Entry Securities, it
will confirm such acceptance in writing to the Selling Agent or Purchasing
Agent, as the case may be, and the Trustee.
COMMUNICATION OF SALE INFORMATION TO THE BANK BY AGENT AND SETTLEMENT
PROCEDURES:
A. After the acceptance of an offer by the Bank, the Selling Agent or
Purchasing Agent, as the case may be, will communicate promptly, but in no event
later than the time set forth under "Settlement Procedure Timetable" below, the
following details of the terms of such offer (the "Sale Information") to the
Bank by telephone (confirmed in writing) or by facsimile transmission or other
acceptable written means:
(1) Principal Amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate and initial
interest payment date;
(3) Trade Date;
II-2
<PAGE>
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified Currency
(it being understood that currently the Depositary accepts deposits of
Global Securities denominated in U.S. dollars only);
(7) Indexed Currency, the Base Rate and the Exchange Rate Determination
Date, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as the case
may be;
(10) Net Proceeds to the Bank;
(11) If a redeemable Book-Entry Security, such of the following as are
applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall decline (but
not below par) on each anniversary of the Redemption
Commencement Date;
(12) If a Floating Rate Book-Entry Security, such of the following as are
applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
II-3
<PAGE>
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number of the registered
owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Book-Entry Security or Certificated Security; and
(16) Selling Agent or Purchasing Agent.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Bank will communicate such Sale
Information to the Trustee by facsimile transmission or other acceptable written
means. The Trustee will assign a CUSIP number to the Global Security from a
list of CUSIP numbers previously delivered to the Trustee by the Bank
representing such Book-Entry Security and then advise the Bank and the Selling
Agent or Purchasing Agent, as the case may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following settlement
information to the Depositary, and the Depositary shall forward such information
to such Agent and Standard & Poor's Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such Book-Entry
Security;
(3) Whether such Global Security will represent any other Book-Entry
Security (to the extent known at such time);
(4) Number of the participant account maintained by the Depositary on
behalf of the Selling Agent or Purchasing Agent, as the case may be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry Security, number of
days by which such date succeeds the record date for the Depositary's
purposes (which in the case of Floating Rate Securities which reset
weekly shall be the date five
II-4
<PAGE>
calendar days immediately preceding the applicable Interest Payment
Date and in the case of all other Book-Entry Securities shall be the
Regular Record Date, as defined in the Security) and, if calculable
at that time, the amount of interest payable on such Interest
Payment Date.
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Bank representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the Trustee's
participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary to (i) debit such
Book-Entry Security to the Trustee's participant account and credit such
Book-Entry Security to such Agent's participant account and (ii) debit such
Agent's settlement account and credit the Trustee's settlement account for an
amount equal to the price of such Book-Entry Security less such Agent's
commission. The entry of such a deliver order shall constitute a representation
and warranty by the Trustee to the Depositary that (a) the Global Security
representing such Book-Entry Security has been issued and authenticated and (b)
the Trustee is holding such Global Security pursuant to the Certificate
Agreement.
G. Such Agent will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary (i) to debit such
Book-Entry Security to such Agent's participant account and credit such
Book-Entry Security to the participant accounts of the Participants with respect
to such Book-Entry Security and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of such Agent for an amount equal
to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will transfer to
account #6520293439 maintainted in the name of National Cooperative Bank
Operating at Signet Bank of Richmond, Virginia, ABA 051006778, REF: MTN Program,
or such other account as the Bank may have previously specified to the Trustee,
in funds available for immediate use in the amount transferred to the Trustee in
accordance with Settlement Procedure "F".
J. Upon request, the Trustee will send to the Bank a statement setting
forth the principal amount of Book-Entry Securities outstanding as of that date
under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security to
the purchaser either by transmitting to the Participants with respect to such
Book-Entry Security a
II-5
<PAGE>
confirmation order or orders through the Depositary's institutional delivery
system or by mailing a written confirmation to such purchaser.
L. The Depositary will, at any time, upon request of the Bank or the
Trustee, promptly furnish to the Bank or the Trustee a list of the names and
addresses of the participants for whom the Depositary has credited Book-Entry
Securities.
PREPARATION OF PRICING SUPPLEMENT:
If the Bank accepts an offer to purchase a Book-Entry Security, it will
prepare a Pricing Supplement reflecting the terms of such Book-Entry Security
and arrange to have delivered to the Selling Agent or Purchasing Agent, as the
case may be, at least ten copies of such Pricing Supplement, not later than 5:00
p.m., New York City time, on the Business Day following the Trade Date (as
defined below), or if the Bank and the purchaser agree to settlement on the
Business Day following the date of acceptance of such offer, not later than
noon, New York City time, on such date. The Bank will arrange to have ten
Pricing Supplements filed with the Commission not later than the close of
business of the Commission on the fifth Business Day following the date on which
such Pricing Supplement is first used.
DELIVERY OF CONFIRMATION AND PROSPECTUS TO PURCHASER BY SELLING AGENT:
The Selling Agent will deliver to the purchaser of a Book-Entry Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Book-Entry Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Book-Entry Security.
DATE OF SETTLEMENT:
The receipt by the Bank of immediately available funds in payment for a
Book-Entry Security and the authentication and issuance of the Global Security
representing such Book-Entry Security shall constitute "settlement" with respect
to such Book-Entry Security. All orders of Book-Entry Securities solicited by a
Selling Agent or made by a Purchasing Agent and accepted by the Bank on a
particular date (the "Trade Date") will be settled on a date (the "Settlement
Date") which is the fifth Business Day after the Trade Date pursuant to the
"Settlement Procedure Timetable" set forth below, unless the Bank and the
purchaser agree to settlement on another Business Day which shall be no earlier
than the next Business Day after the Trade Date.
SETTLEMENT PROCEDURE TIMETABLE:
For orders of Book-Entry Securities solicited by a Selling Agent and
accepted by the Bank for settlement on the fifth Business Day after the Trade
Date, Settlement Procedures "A" through "I" set forth above shall be completed
as soon as possible but not later than the respective times (New York City time)
set forth below:
II-6
<PAGE>
SETTLEMENT
PROCEDURE TIME
- ---------- ----
A 5:00 p.m. on the Business Day following the Trade Date or
10:00 a.m. on the Business Day prior to the
Settlement Date, whichever is earlier
B 12:00 noon on the second Business Day immediately
preceding the Settlement Date
C 2:00 p.m. on the second Business Day immediately
preceding the Settlement Date
D 9:00 a.m. on the Settlement Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
If the initial interest rate for a Floating Rate Book-Entry Security has
not been determined at the time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed as soon as such rate has
been determined but no later than 2:00 p.m. on the second Business Day
immediately preceding the Settlement Date. Settlement Procedure "H" is subject
to extension in accordance with any extension of Fedwire closing deadlines and
in the other events specified in the SDFS operating procedures in effect on the
Settlement Date.
If settlement of a Book-Entry Security is rescheduled or canceled, the
Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participation Terminal System, a cancellation message
to such effect by no later than 2:00 p.m. on the Business Day immediately
preceding the scheduled Settlement Date.
FAILURE TO SETTLE:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal System,
as soon as practicable a withdrawal message instructing the Depositary to debit
such Book-Entry Security to the Trustee's participant account, provided that the
Trustee's participant account contains a principal amount of the Global Security
representing such Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with respect to all
the Book-Entry Securities represented by a Global Security, the Trustee will
mark such Global Security "canceled", make appropriate entries in the Trustee's
records and send such canceled Global Security to the Bank. The CUSIP number
assigned to such Global Security shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned. If a withdrawal message
is processed with respect to one or more, but not all, of the Book-Entry
Securities represented by a Global Security, the Trustee will exchange such
Global Security for two Global Securities, one of which
II-7
<PAGE>
shall represent such Book-Entry Security or Securities and shall be canceled
immediately after issuance and the other of which shall represent the
remaining Book-Entry Securities previously represented by the surrendered
Global Security and shall bear the CUSIP number of the surrendered Global
Security.
If the purchase price for any Book-Entry Security is not timely paid to the
participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in the
Depositary, acting on behalf of such purchaser), such participants and, in turn,
the Agent for such Book-Entry Security may enter deliver orders through the
Depositary's Participant Terminal System debiting such Book-Entry Security to
such participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Bank and the Trustee thereof.
Thereafter, the Trustee will (i) immediately notify the Bank of such order and
the Bank shall transfer to such Agent funds available for immediate use in an
amount equal to the price of such Book-Entry Security which was credited to the
account of the Bank maintained at the Trustee in accordance with Settlement
Procedure I, and (ii) deliver the withdrawal message and take the related
actions described in the preceding paragraph. If such failure shall have
occurred for any reason other than default by the applicable Agent to perform
its obligations hereunder or under the Distribution Agreement, the Bank will
reimburse such Agent on an equitable basis for the loss of its use of funds
during the period when the funds were credited to the account of the Bank.
Notwithstanding the foregoing, upon any failure to settle with respect to a
Book-Entry Security, the Depositary may take any actions in accordance with its
SDFS operating procedures then in effect. In the event of a failure to settle
with respect to one or more, but not all, of the Book-Entry Securities to have
been represented by a Global Security, the Trustee will provide, in accordance
with Settlement Procedure "D", for the authentication and issuance of a Global
Security representing the other Book-Entry Securities to have been represented
by such Global Security and will make appropriate entries in its records. The
Bank will, from time to time, furnish the Trustee with a sufficient quantity of
Securities.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
POSTING RATES BY BANK:
The Bank and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Bank may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Bank decides to change already posted rates, it will
promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
II-8
<PAGE>
ACCEPTANCE OF OFFERS BY BANK:
Each Agent will promptly advise the Bank by telephone or other appropriate
means of all reasonable offers to purchase Certificated Securities, other than
those rejected by such Agent. Each Agent may, in its discretion reasonably
exercised, reject any offer received by it in whole or in part. Each Agent also
may make offers to the Bank to purchase Certificated Securities as a Purchasing
Agent. The Bank will have the sole right to accept offers to purchase
Certificated Securities and may reject any such offer in whole or in part.
The Bank will promptly notify the Selling Agent or Purchasing Agent, as the
case may be, of its acceptance or rejection of an offer to purchase Certificated
Securities. If the Bank accepts an offer to purchase Certificated Securities,
it will confirm such acceptance in writing to the Selling Agent or Purchasing
Agent, as the case may be, and the Trustee.
COMMUNICATION OF SALE INFORMATION TO BANK BY AGENT:
After the acceptance of an offer by the Bank, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the Bank by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal Amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate and initial
interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified
Currency;
(7) Indexed Currency, the Base Rate and the Exchange Rate Determination
Date, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as the case
may be;
(10) Net Proceeds to the Bank;
(11) If a redeemable Certificated Security, such of the following as are
applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall decline (but
not below par) on each anniversary of the Redemption
Commencement Date;
(12) If a Floating Rate Certificated Security, such of the following as are
applicable:
II-9
<PAGE>
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number of the registered
owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Book-Entry Security or Certificated Security; and
(16) Selling Agent or Purchasing Agent.
PREPARATION OF PRICING SUPPLEMENT BY BANK:
If the Bank accepts an offer to purchase a Certificated Security, it will
prepare a Pricing Supplement reflecting the terms of such Certificated Security
and arrange to have delivered to the Selling Agent or Purchasing Agent, as the
case may be, at least ten copies of such Pricing Supplement, not later than 5:00
p.m., New York City time, on the Business Day following the Trade Date, or if
the Bank and the purchaser agree to settlement on the date of acceptance of such
offer, not later than noon, New York City time, on such date. The Bank will
arrange to have ten Pricing Supplements filed with the Commission not later than
the close of business of the Commission on the fifth Business Day following the
date on which such Pricing Supplement is first used.
DELIVERY OF CONFIRMATION AND PROSPECTUS TO PURCHASER BY SELLING AGENT:
The Selling Agent will deliver to the purchaser of a Certificated Security
a written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Certificated Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Certificated Security.
II-10
<PAGE>
DATE OF SETTLEMENT:
All offers of Certificated Securities solicited by a Selling Agent or made
by a Purchasing Agent and accepted by the Bank will be settled on a date (the
"Settlement Date") which is the fifth Business Day after the date of acceptance
of such offer, unless the Bank and the purchaser agree to settlement (a) on
another Business Day after the acceptance of such offer or (b) with respect to
an offer accepted by the Bank prior to 10:00 a.m., New York City time, on the
date of such acceptance.
INSTRUCTION FROM BANK TO TRUSTEE FOR PREPARATION OF CERTIFICATED SECURITIES:
After receiving the Sale Information from the Selling Agent or Purchasing
Agent, as the case may be, the Bank will communicate such Sale Information to
the Trustee by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means.
The Bank will instruct the Trustee by facsimile transmission or other
acceptable written means to authenticate and deliver the Certificated Securities
no later than 2:15 p.m., New York City time, on the Settlement Date. Such
instruction will be given by the Bank prior to 3:00 p.m., New York City time, on
the Business Day immediately preceding the Settlement Date unless the Settlement
Date is the date of acceptance by the Bank of the offer to purchase Certificated
Securities in which case such instruction will be given by the Bank by 11:00
a.m., New York City time.
PREPARATION AND DELIVERY OF CERTIFICATED SECURITIES BY TRUSTEE AND RECEIPT OF
PAYMENT THEREFOR:
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser solicited
by a Selling Agent, the Trustee will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Certificated Securities to the Selling Agent for
the benefit of the purchaser of such Certificated Securities against delivery by
the Selling Agent of a receipt therefor. On the Settlement Date the Selling
Agent will deliver payment for such Certificated Securities in immediately
available funds to the Bank in an amount equal to the issue price of the
Certificated Securities less the Selling Agent's commission; provided that the
Selling Agent reserves the right to withhold payment for which it has not
received funds from the purchaser. The Bank shall not use any proceeds advanced
by a Selling Agent to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing Agent, the
Trustee will, by 2:15 p.m., New York City time, on the Settlement Date, deliver
the Certificated Securities to the Purchasing Agent against delivery of payment
for such Certificated Securities in immediately available funds to the Bank in
an amount equal to the issue price of the Certificated Securities less the
Purchasing Agent's discount.
FAILURE OF PURCHASER TO PAY SELLING AGENT:
If a purchaser (other than a Purchasing Agent) fails to make payment to the
Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the Trustee and the Bank
II-11
<PAGE>
thereof by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means. The Selling Agent will immediately return
the Certificated Security to the Trustee. Immediately upon receipt of such
Certificated Security by the Trustee, the Bank will return to the Selling
Agent an amount equal to the amount previously paid to the Bank in respect of
such Certificated Security. The Bank will reimburse the Selling Agent on an
equitable basis for its loss of the use of funds during the period when they
were credited to the account of the Bank.
The Trustee will cancel the Certificated Security in respect of which the
failure occurred, make appropriate entries in its records and, unless otherwise
instructed by the Bank, destroy the Certificated Security.
II-12
<PAGE>
ANNEX III
ACCOUNTANTS' LETTER
Pursuant to Sections 4(j) and 6(d), as the case may be, of the Distribution
Agreement, the Bank's independent certified public accountants shall furnish
letters to the effect that:
(i) They are independent certified public accountants with respect to
the Bank and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, pro forma financial
information and/or condensed financial statements derived from audited
financial statements of the Bank for the periods specified in such letter,
as indicated in their reports thereon, copies of which have been furnished
and are attached hereto;
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus and/or
included in the Bank's quarterly report on Form 10-Q incorporated by
reference into the Prospectus as indicated in their reports thereon copies
of which are attached hereto; and on the basis of specified procedures
including inquiries of officials of the Bank who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i)
below comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Bank for
the five most recent fiscal years included in the Prospectus and included
or incorporated by reference in Item 6 of the Bank's Annual Report on Form
10-K for the most recent fiscal year agrees with the corresponding amounts
(after restatement where applicable) in the audited consolidated
III-1
<PAGE>
financial statements for five such fiscal years which were included or
incorporated by reference in the Bank's Annual Reports on Form 10-K for
such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Bank and its subsidiaries, inspection of the
minute books of the Bank and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Bank and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or
incorporated by reference in the Bank's Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the related published rules and
regulations, or (ii) any material modifications should be made to
the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus or included in the Bank's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus for
them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Bank's Annual Report on Form 10-K
for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in Clause (B) were not determined on
a basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Bank's Annual Report on Form 10-K for the most recent fiscal year;
III-2
<PAGE>
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the published
rules and regulations thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the
latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of
the Bank and its subsidiaries, or any decreases in consolidated net
current assets or stockholders' equity or other items specified by
the Agents, or any increases in any items specified by the Agents,
in each case as compared with amounts shown in the latest balance
sheet included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus
to the specified date referred to in Clause (E) there were any
decreases in consolidated net revenues or operating profit or the
total or per share amounts of consolidated net income or other items
specified by the Agents, or any increases in any items specified by
the Agents, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length
specified by the Agents, except in each case for increases or
decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Agents which are derived from the
general accounting records of the Bank and its subsidiaries, which appear
in the Prospectus (excluding documents incorporated by reference), or in
Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Agents or in documents incorporated by reference in the
Prospectus specified by the Agents, and have compared certain of such
amounts, percentages and financial information with the accounting records
of the Bank and its subsidiaries and have found them to be in agreement.
All references in this Annex III to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Distribution
III-3
<PAGE>
Agreement as of the Commencement Date referred to in Section 6(d) thereof and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) as of the date of the amendment,
supplement, incorporation or the Time of Delivery relating to the Terms
Agreement requiring the delivery of such letter under Section 4(j) thereof.
III-4
<PAGE>
EXHIBIT 4.1
NATIONAL CONSUMER COOPERATIVE BANK,
ISSUER
to
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
_______________
INDENTURE
_______________
Dated as of ___________, 1997
Debt Securities
<PAGE>
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
Act Section Indenture Section
Section 310(a)(1) 607
(a)(2) 607
(b) 608
Section 312(a) 701
(b) 702
(c) 702
Section 313(a) 703
(b)(2) 703
(c) 703
(d) 703
Section 314(a) 704
(c)(1) 102
(c)(2) 102
(e) 102
(f) 102
Section 316(a) (last sentence) 101
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
Section 317(a)(1) 503
(a)(2) 504
(b) 1003
Section 318(a) 108
- -----------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act, which provides that the provisions of Sections 310 to
and including 317 are a part of and govern every qualified
indenture, whether or not physically contained herein.
i
<PAGE>
TABLE OF CONTENTS
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. DEFINITIONS.. . . . . . . . . . . . . . . . . . . . . . . . 2
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . . . . 3
Authorized Newspaper. . . . . . . . . . . . . . . . . . . . . . . . . 3
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors. . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Cedel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Conversion Event. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office. . . . . . . . . . . . . . . . . . . . . . . . 4
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Coupon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Currency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
CUSIP number. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollars or $. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Euroclear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
European Monetary System. . . . . . . . . . . . . . . . . . . . . . . 4
European Union. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Foreign Currency. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
GAAP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Government Obligations. . . . . . . . . . . . . . . . . . . . . . . . 5
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Independent Public Accountants. . . . . . . . . . . . . . . . . . . . 6
Indexed Security. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . 6
ii
<PAGE>
Issuer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Issuer Request and Issuer Order . . . . . . . . . . . . . . . . . . . 6
Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
New York Banking Day. . . . . . . . . . . . . . . . . . . . . . . . . 6
Office or Agency. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . 7
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . 7
Original Issue Discount Security. . . . . . . . . . . . . . . . . . . 7
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Place of Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Predecessor Security. . . . . . . . . . . . . . . . . . . . . . . . . 9
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . 9
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . 9
Required Currency . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security or Securities. . . . . . . . . . . . . . . . . . . . . . . . 9
Security Register and Security Registrar. . . . . . . . . . . . . . . 9
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . 9
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . 10
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States Alien . . . . . . . . . . . . . . . . . . . . . . . . . 10
U.S. Depository or Depository . . . . . . . . . . . . . . . . . . . . 10
Vice President. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS. . . . . . . . . . . . 11
Section 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. . . . . . . . . . . 11
Section 104. ACTS OF HOLDERS.. . . . . . . . . . . . . . . . . . . . . . 12
Section 105. NOTICES, ETC. TO TRUSTEE AND ISSUER.. . . . . . . . . . . . 14
Section 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.. . . . . . . . . . 14
Section 107. LANGUAGE OF NOTICES.. . . . . . . . . . . . . . . . . . . . 15
Section 108. CONFLICT WITH TRUST INDENTURE ACT.. . . . . . . . . . . . . 15
Section 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS. . . . . . . . . . 15
Section 110. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . . . 16
Section 111. SEPARABILITY CLAUSE.. . . . . . . . . . . . . . . . . . . . 16
Section 112. BENEFITS OF INDENTURE.. . . . . . . . . . . . . . . . . . . 16
Section 113. GOVERNING LAW.. . . . . . . . . . . . . . . . . . . . . . . 16
iii
<PAGE>
Section 114. LEGAL HOLIDAYS. . . . . . . . . . . . . . . . . . . . . . . 16
Section 115. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . 17
Section 116. JUDGMENT CURRENCY.. . . . . . . . . . . . . . . . . . . . . 17
ARTICLE TWO
SECURITIES FORMS
Section 201. FORMS GENERALLY.. . . . . . . . . . . . . . . . . . . . . . 17
Section 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.. . . . . . 18
Section 203. SECURITIES IN GLOBAL FORM.. . . . . . . . . . . . . . . . . 18
ARTICLE THREE
THE SECURITIES
Section 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. . . . . . . . . . . . 19
Section 302. CURRENCY; DENOMINATIONS.. . . . . . . . . . . . . . . . . . 23
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. . . . . . . 23
Section 304. TEMPORARY SECURITIES. . . . . . . . . . . . . . . . . . . . 25
Section 305. REGISTRATION, TRANSFER AND EXCHANGE.. . . . . . . . . . . . 26
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. . . . . . 30
Section 307. PAYMENT OF INTEREST AND CERTAIN ADDITIONAL AMOUNTS;
RIGHTS TO INTEREST AND CERTAIN ADDITIONAL AMOUNTS
PRESERVED.. . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 308. PERSONS DEEMED OWNERS.. . . . . . . . . . . . . . . . . . . 33
Section 309. CANCELLATION. . . . . . . . . . . . . . . . . . . . . . . . 34
Section 310. COMPUTATION OF INTEREST.. . . . . . . . . . . . . . . . . . 34
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. SATISFACTION AND DISCHARGE. . . . . . . . . . . . . . . . . 34
Section 402. DEFEASANCE AND COVENANT DEFEASANCE. . . . . . . . . . . . . 36
Section 403. APPLICATION OF TRUST MONEY. . . . . . . . . . . . . . . . . 40
ARTICLE FIVE
REMEDIES
Section 501. EVENTS OF DEFAULT.. . . . . . . . . . . . . . . . . . . . . 40
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. . . . . 42
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.. . . . . . . . . . . . . . . . . . . . . . . . . . 43
iv
<PAGE>
Section 504. TRUSTEE MAY FILE PROOFS OF CLAIM. . . . . . . . . . . . . . 44
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS.. . . . . . . . . . . . . . . . . . . 45
Section 506. APPLICATION OF MONEY COLLECTED. . . . . . . . . . . . . . . 45
Section 507. LIMITATIONS ON SUITS. . . . . . . . . . . . . . . . . . . . 46
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND
ANY PREMIUM, INTEREST AND ADDITIONAL AMOUNTS. . . . . . . . 47
Section 509. RESTORATION OF RIGHTS AND REMEDIES. . . . . . . . . . . . . 47
Section 510. RIGHTS AND REMEDIES CUMULATIVE. . . . . . . . . . . . . . . 47
Section 511. DELAY OR OMISSION NOT WAIVER. . . . . . . . . . . . . . . . 47
Section 512. CONTROL BY HOLDERS OF SECURITIES. . . . . . . . . . . . . . 48
Section 513. WAIVER OF PAST DEFAULTS.. . . . . . . . . . . . . . . . . . 48
Section 514. WAIVER OF STAY OR EXTENSION LAWS. . . . . . . . . . . . . . 49
Section 515. UNDERTAKING FOR COSTS . . . . . . . . . . . . . . . . . . . 49
ARTICLE SIX
THE TRUSTEE
Section 601. CERTAIN RIGHTS OF TRUSTEE.. . . . . . . . . . . . . . . . . 49
Section 602. NOTICE OF DEFAULTS. . . . . . . . . . . . . . . . . . . . . 51
Section 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. . . 51
Section 604. MAY HOLD SECURITIES.. . . . . . . . . . . . . . . . . . . . 51
Section 605. MONEY HELD IN TRUST.. . . . . . . . . . . . . . . . . . . . 52
Section 606. COMPENSATION AND REIMBURSEMENT. . . . . . . . . . . . . . . 52
Section 607. CORPORATE TRUSTEE REQUIRED. . . . . . . . . . . . . . . . . 53
Section 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.. . . . . 53
Section 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. . . . . . . . . . . 54
Section 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 611. APPOINTMENT OF AUTHENTICATING AGENT.. . . . . . . . . . . . 56
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND ISSUER
Section 701. ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.. . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS. . . 58
Section 703. REPORTS BY TRUSTEE. . . . . . . . . . . . . . . . . . . . . 59
Section 704. REPORTS BY ISSUER.. . . . . . . . . . . . . . . . . . . . . 59
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
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Section 801. ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.. . . . 60
Section 802. SUCCESSOR PERSON SUBSTITUTED FOR ISSUER.. . . . . . . . . . 61
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. . . . . 61
Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.. . . . . . 62
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES. . . . . . . . . . . . 64
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES.. . . . . . . . . . . . . 64
Section 905. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES. . . . . 64
Section 906. CONFORMITY WITH TRUST INDENTURE ACT.. . . . . . . . . . . . 64
ARTICLE TEN
COVENANTS
Section 1001. PAYMENT OF PRINCIPAL, ANY PREMIUM, INTEREST AND
ADDITIONAL AMOUNTS. . . . . . . . . . . . . . . . . . . . . 65
Section 1002. MAINTENANCE OF OFFICE OR AGENCY.. . . . . . . . . . . . . . 65
Section 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.. . . . . 66
Section 1004. ADDITIONAL AMOUNTS. . . . . . . . . . . . . . . . . . . . . 68
Section 1005. CORPORATE EXISTENCE.. . . . . . . . . . . . . . . . . . . . 69
Section 1006. WAIVER OF CERTAIN COVENANTS.. . . . . . . . . . . . . . . . 69
Section 1007. ISSUER STATEMENT AS TO COMPLIANCE; NOTICE OF CERTAIN
DEFAULTS. . . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. APPLICABILITY OF ARTICLE. . . . . . . . . . . . . . . . . . 70
Section 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.. . . . . . . . . . . 70
Section 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.. . . . . 70
Section 1104. NOTICE OF REDEMPTION. . . . . . . . . . . . . . . . . . . . 71
Section 1105. DEPOSIT OF REDEMPTION PRICE.. . . . . . . . . . . . . . . . 73
Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE.. . . . . . . . . . . 73
Section 1107. SECURITIES REDEEMED IN PART.. . . . . . . . . . . . . . . . 74
ARTICLE TWELVE
SINKING FUNDS
Section 1201. APPLICABILITY OF ARTICLE. . . . . . . . . . . . . . . . . . 74
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Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.. . . . . . . . . 75
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. APPLICABILITY OF ARTICLE. . . . . . . . . . . . . . . . . . 76
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. APPLICABILITY OF ARTICLE. . . . . . . . . . . . . . . . . . 76
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.. . . . . . . . . 77
Section 1502. CALL, NOTICE AND PLACE OF MEETINGS. . . . . . . . . . . . . 77
Section 1503. PERSONS ENTITLED TO VOTE AT MEETINGS. . . . . . . . . . . . 78
Section 1504. QUORUM; ACTION. . . . . . . . . . . . . . . . . . . . . . . 78
Section 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS.. . . . . . . . . . . . . . . . . . . . . . . . 79
Section 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.. . . . . . 80
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INDENTURE, dated as of _______________, 1997 (the "Indenture"), among
NATIONAL CONSUMER COOPERATIVE BANK, a financial institution duly organized and
existing under the laws of the United States (hereinafter called the "Issuer"),
having its principal executive office located at 1401 Eye Street N.W., Suite
700, Washington, DC 20005, and THE FIRST NATIONAL BANK OF CHICAGO, a national
banking association duly organized and existing under the laws of the United
States, as Trustee (hereinafter called the "Trustee"), having its Corporate
Trust Office located at One First National Plaza, Suite 0126, Chicago, Illinois
60670-0126.
RECITALS
The Issuer has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior unsecured
debentures, notes or other evidences of indebtedness (hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided.
The Issuer has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Issuer, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof and any Coupons (as herein defined) as
follows:
<PAGE>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. DEFINITIONS.
Except as otherwise expressly provided in or pursuant to this
Indenture or unless the context otherwise requires, for all purposes of this
Indenture:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the terms
"generally accepted accounting principles" or "GAAP" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such computation;
(4) the words "herein", "hereof", "hereto" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(5) the word "or" is always used inclusively (for example, the phrase
"A or B" means "A or B or both", not "either A or B but not both").
Certain terms used principally in certain Articles hereof are defined
in those Articles.
"ACT", when used with respect to any Holders, has the meaning
specified in Section 104.
"ADDITIONAL AMOUNTS" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Issuer in respect of certain taxes, assessments or other
governmental charges imposed on Holders specified therein and which are owing to
such Holders.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or
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indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have the meanings
correlative to the foregoing.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee
pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"AUTHORIZED NEWSPAPER" means a newspaper, in an official language of
the place of publication or in the English language, customarily published on
each day that is a Business Day in the place of publication, whether or not
published on days that are Legal Holidays in the place of publication, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"BEARER SECURITY" means any Security in the form established pursuant
to Section 201 which is payable to bearer.
"BOARD OF DIRECTORS" means the board of directors of the Issuer or any
committee of that board duly authorized to act generally or in any particular
respect for the Issuer hereunder.
"BOARD RESOLUTION" means a copy of one or more resolutions, certified
by the Secretary or an Assistant Secretary of the Issuer to have been duly
adopted by the Board of Directors and to be in full force and effect on the date
of such certification, delivered to the Trustee.
"BUSINESS DAY", with respect to any Place of Payment or other
location, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, any day other than a Saturday, Sunday or other day on
which banking institutions in such Place of Payment or other location are
authorized or obligated by law, regulation or executive order to close.
"CEDEL" means Cedel Bank, societe anonyme, or its successor.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, 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 STOCK" includes any stock of any class of the Issuer which has
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Issuer
and which is not subject to redemption by the Issuer.
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"CONVERSION EVENT" means the cessation of use of (i) a Foreign
Currency both by the government of the country or the confederation which issued
such Foreign Currency and for the settlement of transactions by a central bank
or other public institutions of or within the international banking community,
(ii) the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii) any
currency unit or composite currency other than the ECU for the purposes for
which it was established.
"CORPORATE TRUST OFFICE" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of original execution of this
Indenture is located at One First National Plaza, Suite 0126, Chicago, Illinois
60670-0126.
"CORPORATION" includes corporations and limited liability companies
and, except for purposes of Article Eight, associations, companies and business
trusts.
"COUPON" means any interest coupon appertaining to a Bearer Security.
"CURRENCY", with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP NUMBER" means the alphanumeric designation assigned to a
Security by Standard & Poor's Corporation, CUSIP Service Bureau.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DOLLARS" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of America.
"ECU" means the European Currency Units as defined and revised from
time to time by the Council of the European Community.
"EUROCLEAR" means Morgan Guaranty Trust Company of New York, Brussels
office, or its successor, as operator of the Euroclear System.
"EUROPEAN MONETARY SYSTEM" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Community.
"EUROPEAN UNION" means the European Community, the European Coal and
Steel Community and the European Atomic Energy Community.
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"EVENT OF DEFAULT" has the meaning specified in Section 501.
"FOREIGN CURRENCY" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"GAAP" means such accounting principles as are generally accepted in
the United States of America as of the date or time of any computation required
hereunder.
"GOVERNMENT OBLIGATIONS" means securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on such Security or any Additional
Amounts in respect thereof shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such
government or governments or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America or such other government or governments, in each case where the timely
payment or payments thereunder are unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such other government
or governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of or other amount with respect to any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
PROVIDED that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of or other
amount with respect to the Government Obligation evidenced by such depository
receipt.
"HOLDER", in the case of any Registered Security, means the Person in
whose name such Security is registered in the Security Register and, in the case
of any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"INDEBTEDNESS", with respect to any Person, means indebtedness for
borrowed money or for the unpaid purchase price of real or personal property of,
or guaranteed by, such Person and computed in accordance with GAAP.
"INDENTURE" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 301 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
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"INDEPENDENT PUBLIC ACCOUNTANTS" means accountants or a firm of
accountants that, with respect to the Issuer and any other obligor under the
Securities or the Coupons, are independent public accountants within the meaning
of the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the Commission thereunder, who may be the independent public
accountants regularly retained by the Issuer or who may be other independent
public accountants. Such accountants or firm shall be entitled to rely upon any
Opinion of Counsel as to the interpretation of any legal matters relating to
this Indenture or certificates required to be provided hereunder.
"INDEXED SECURITY" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"INTEREST", with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 1004, includes such Additional
Amounts.
"INTEREST PAYMENT DATE", with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"ISSUER" means National Consumer Cooperative Bank, until a successor
Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Issuer" shall mean such successor Person, and any
other obligor upon the Securities.
"ISSUER REQUEST" and "ISSUER ORDER" mean, respectively, a written
request or order, as the case may be, signed in the name of the Issuer by the
Chairman of the Board of Directors, a Vice Chairman, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Issuer, and delivered to the Trustee.
"JUDGMENT CURRENCY" has the meaning specified in Section 116.
"LEGAL HOLIDAYS" has the meaning specified in Section 114.
"MATURITY", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes the Redemption
Date.
"NEW YORK BANKING DAY" has the meaning specified in Section 116.
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"OFFICE" OR "AGENCY", with respect to any Securities, means an office
or agency of the Issuer maintained or designated in a Place of Payment for such
Securities pursuant to Section 1002 or any other office or agency of the Issuer
maintained or designated for such Securities pursuant to Section 1002 or, to the
extent designated or required by Section 1002 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of
the Board, a Vice Chairman, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Issuer, that complies with the requirements of Section 314(e) of the Trust
Indenture Act and is delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be an
employee of or counsel for the Issuer or other counsel that, if required by the
Trust Indenture Act, complies with the requirements of Section 314(e) of the
Trust Indenture Act.
"ORIGINAL ISSUE DISCOUNT SECURITY" means a Security issued pursuant to
this Indenture which provides for declaration of an amount less than the
principal face amount thereof to be due and payable upon acceleration pursuant
to Section 502.
"OUTSTANDING", when used with respect to any Securities, means, as of
the date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security
Registrar for cancellation;
(b) any such Security for whose payment at the Maturity thereof money
in the necessary amount has been theretofore deposited pursuant
hereto with the Trustee or any Paying Agent (other than the
Issuer) in trust or set aside and segregated in trust by the
Issuer (if the Issuer shall act as its own Paying Agent) for the
Holders of such Securities and any Coupons appertaining thereto,
PROVIDED that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Issuer has effected
defeasance pursuant to the terms hereof, except to the extent
provided in Section 402;
(d) any such Security which has been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, unless
there shall have been presented to the Trustee proof satisfactory
to it that such Security is held
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by a bona fide purchaser in whose hands such Security is a valid
obligation of the Issuer; and
(e) any such Security converted or exchanged as contemplated by this
Indenture into other securities, if the terms of such Security
provide for such conversion or exchange pursuant to Section 301;
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 or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 502 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
the principal amount of a Security denominated in a Foreign Currency shall be
the Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above) of such Security,
and (iv) Securities owned by the Issuer or any other obligor upon the Securities
or any Affiliate of the Issuer or such other obligor, shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in making any such determination or relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which shall have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee (A) the pledgee's right so to act with
respect to such Securities and (B) that the pledgee is not the Issuer or any
other obligor upon the Securities or any Coupons appertaining thereto or an
Affiliate of the Issuer or such other obligor.
"PAYING AGENT" means any Person authorized by the Issuer to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Issuer.
"PERSON" means any individual, Corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof or financial institution
organized under the laws of the United States.
"PLACE OF PAYMENT", with respect to any Security, means the place or
places where the principal of, or any premium or interest on, or any Additional
Amounts with respect to such Security are payable as provided in or pursuant to
this Indenture or such Security.
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"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same Indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same Indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"REDEMPTION DATE", with respect to any Security or portion thereof to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"REDEMPTION PRICE", with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"REGISTERED SECURITY" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"REGULAR RECORD DATE" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any, specified
in or pursuant to this Indenture or such Security as the "Regular Record Date".
"REQUIRED CURRENCY" has the meaning specified in Section 116.
"RESPONSIBLE OFFICER" means, with respect to the Trustee, any officer
within the Corporate Trust Office including any Vice President, Managing
Director, Assistant Vice President, Secretary, Assistant Secretary or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge and familiarity with the particular subject.
"SECURITY" or "SECURITIES" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of Indebtedness, as the case may
be, authenticated and delivered under this Indenture; PROVIDED, HOWEVER, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Trustee pursuant to Section 307.
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"STATED MATURITY", with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and
payable.
"SUBSIDIARY" means any Corporation of which at the time of
determination the Issuer or one or more Subsidiaries owns or controls directly
or indirectly more than 50% of the shares of Voting Stock.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; PROVIDED, HOWEVER, that if at any time there is
more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean the Trustee with
respect to the Securities of such series.
"UNITED STATES", except as otherwise provided in or pursuant to this
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"UNITED STATES ALIEN", except as otherwise provided in or pursuant to
this Indenture or any Security, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. DEPOSITORY" or "DEPOSITORY" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository or Depository by the Issuer in or pursuant to this
Indenture, which Person must be, to the extent required by applicable law or
regulation, a clearing agency registered under the Securities Exchange Act of
1934, as amended, and, if so provided with respect to any Security, any
successor to such Person. If at any time there is more than one such Person,
"U.S. Depository" or "Depository" shall mean, with respect to any Securities,
the qualifying entity which has been appointed with respect to such Securities.
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"VICE PRESIDENT", when used with respect to the Issuer or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President".
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Issuer to the Trustee to take any action under any
provision of this Indenture, the Issuer shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
or any of them is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Section 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Issuer may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
opinion with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such 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 Issuer stating that the information with
respect to such factual matters is in the possession of the Issuer unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
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Section 104. ACTS OF HOLDERS.
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If, but only if, Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to be
given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Issuer. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee and
the Issuer and any agent of the Trustee or the Issuer, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1506.
Without limiting the generality of this Section 104, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a U.S. Depository
that is a Holder of a global Security, may make, give or take, by a proxy, or
proxies, duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant to this
Indenture to be made, given or taken by Holders, and a U.S. Depository that is a
Holder of a global Security may provide its proxy or proxies to the beneficial
owners of interests in any such global Security through such U.S. Depository's
standing instructions and customary practices.
The Trustee shall fix a record date for the purpose of determining
the Persons who are beneficial owners of interest in any permanent global
Security held by a U.S. Depository entitled under the procedures of such U.S.
Depository to make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent,
waiver or other Act provided in or pursuant to this Indenture to be made,
given or taken by Holders. If such a record date is fixed, the Holders on
such record date or their duly appointed proxy or proxies, and only such
Persons, shall be entitled to make, give or take such request, demand,
authorization, direction, notice, consent, waiver or other Act, whether or
not such Holders remain Holders after such record date. No such request,
demand, authorization, direction, notice, consent, waiver or other Act shall
be valid or effective if made, given or taken more than 90 days after such
record date.
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(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary reasonably acceptable to the Issuer,
wherever situated, if such certificate shall be deemed by the Issuer and the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Issuer may assume that such ownership of any Bearer Security continues until (1)
another certificate or affidavit bearing a later date issued in respect of the
same Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership, principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument or writing and the
date of the commencement and the date of the termination of holding the same may
also be proved in any other manner which the Issuer and the Trustee deem
sufficient.
(5) If the Issuer shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Issuer may at its option (but is not obligated to), by
Board Resolution, fix in advance a record date for the determination of Holders
of Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the
Holders of Registered Securities of record at the close of business on such
record date shall be deemed to be Holders for the purpose of determining whether
Holders of the requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of such record date; provided that no such authorization,
agreement or consent by the Holders of Registered Securities shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
(6) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security and
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the Holder of every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything done or
suffered to be done by the Trustee, any Security Registrar, any Paying Agent
or the Issuer in reliance thereon, whether or not notation of such Act is
made upon such Security.
Section 105. NOTICES, ETC. TO TRUSTEE AND ISSUER.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Issuer 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
(2) the Issuer by the Trustee or any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Issuer addressed to
the attention of its Chief Financial Officer 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
Issuer.
Section 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each
Holder of a Registered Security affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City of
New York and, if such Securities are then listed on any stock exchange
outside the United States, in an Authorized Newspaper in such city as the
Issuer shall advise the Trustee that such stock exchange so requires, on a
Business Day at least twice, the first such publication to be not earlier
than the earliest date and the second such publication not later than the
latest date prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular
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Holder of a Registered Security shall affect the sufficiency of such notice
with respect to other Holders of Registered Securities or the sufficiency of
any notice to Holders of Bearer Securities given as provided herein. Any
notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given or provided. In the case by reason of the
suspension of regular mail service or by reason of any other cause it shall
be impracticable to give such notice by mail, then such notification as shall
be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities 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 107. LANGUAGE OF NOTICES.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Issuer so elects, any published notice may
be in an official language of the country of publication.
Section 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
Section 109. 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.
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Section 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Issuer shall
bind its successors and assigns, whether so expressed or not.
Section 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture, any Security or any Coupon
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 112. BENEFITS OF INDENTURE.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their successors hereunder and the Holders of
Securities or Coupons, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 113. GOVERNING LAW.
This Indenture, the Securities and any Coupons shall be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said
state.
Section 114. LEGAL HOLIDAYS.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security, or the last date on which a Holder has the right to
convert or exchange Securities of a series that are convertible or exchangeable,
shall be a Legal Holiday at any Place of Payment, then (notwithstanding any
other provision of this Indenture, any Security or any Coupon other than a
provision in any Security or Coupon that specifically states that such provision
shall apply in lieu hereof) payment need not be made at such Place of Payment on
such date, and such Securities need not be converted or exchanged on such date
but such payment may be made, and such Securities may be converted or exchanged,
on the next succeeding day that is a Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or at the
Stated Maturity or Maturity or on such last day for conversion or exchange, and
no interest shall accrue on the amount payable on such date or at such time for
the period from and after such Interest Payment Date, Stated Maturity, Maturity
or last day for conversion or exchange, as the case may be, to the next
succeeding Business Day.
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Section 115. COUNTERPARTS.
This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
Section 116. JUDGMENT CURRENCY.
The Issuer agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of, or
premium or interest, if any, or Additional Amounts on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
New York Banking Day preceding that on which a final unappealable judgment is
given and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
clause (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, "New York Banking Day" means any
day except a Saturday, Sunday or a legal holiday in The City of New York or a
day on which banking institutions in The City of New York are authorized or
obligated by law, regulation or executive order to be closed.
ARTICLE TWO
SECURITIES FORMS
Section 201. FORMS GENERALLY.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or pursuant
to this Indenture or any indenture supplemental hereto and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may,
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consistently herewith, be determined by the officers executing such Security
or Coupon as evidenced by their execution of such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons
and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Issuer executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
Section 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By
-----------------------------------
Authorized Officer
Section 203. SECURITIES IN GLOBAL FORM.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in temporary or permanent
global form. If Securities of a series shall be issuable in global form, any
such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to
reflect exchanges. Any endorsement of any Security in global form to reflect
the amount, or any increase or decrease in the amount, or changes in the rights
of Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Issuer Order to be delivered pursuant to Section 303 or 304 with respect
thereto. Subject to the provisions of Section 303 and, if applicable, Section
304, the Trustee shall deliver and redeliver any Security in permanent global
form in the manner and upon written instructions given by the Person or Persons
specified therein
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or in the applicable Issuer Order. If an Issuer Order pursuant to Section
303 or 304 has been, or simultaneously is, delivered, any instructions by the
Issuer with respect to a Security in global form shall be in writing but need
not be accompanied by or contained in an Officers' Certificate and need not
be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts in respect
of, any Security in temporary or permanent global form shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Issuer, the Trustee and any agent of the Issuer
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a global Security (i) in the case of a
global Security in registered form, the Holder of such global Security in
registered form, or (ii) in the case of a global Security in bearer form, the
Person or Persons specified pursuant to Section 301.
ARTICLE THREE
THE SECURITIES
Section 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto,
(1) the title of such Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the Securities of
such title or the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu
of, other Securities of such series pursuant to Section 304, 305, 306, 905
or 1107, upon repayment on part of any Registered Security of such series
pursuant to Article Thirteen, upon surrender in part of any Registered
Security for conversion or exchange into other securities pursuant to its
terms, or pursuant to the terms of such Securities);
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(3) if such Securities are to be issuable as Registered Securities, as
Bearer Securities or alternatively as Bearer Securities and Registered
Securities, and whether the Bearer Securities are to be issuable with
Coupons, without Coupons or both, and any restrictions applicable to the
offer, sale or delivery of the Bearer Securities and the terms, if any,
upon which Bearer Securities may be exchanged for Registered Securities and
vice versa;
(4) if any of such Securities are to be issuable in global form, when
any of such Securities are to be issuable in global form and (i) whether
such Securities are to be issued in temporary or permanent global form or
both, (ii) whether beneficial owners of interests in any such global
Security may exchange such interests for Securities of the same series and
of like tenor and of any authorized form and denomination, and the
circumstances under which any such exchanges may occur, if other than in
the manner specified in Section 305, and (iii) the name of the Depository
or the U.S. Depository, as the case may be, with respect to any global
Security;
(5) if any of such Securities are to be issuable as Bearer Securities
or in global form, the date as of which any such Bearer Security or global
Security shall be dated (if other than the date of original issuance of the
first of such Securities to be issued);
(6) if any of such Securities are to be issuable as Bearer Securities,
whether interest in respect of any portion of a temporary Bearer Security
in global form payable in respect of an Interest Payment Date therefor
prior to the exchange, if any, of such temporary Bearer Security for
definitive Securities shall be paid to any clearing organization with
respect to the portion of such temporary Bearer Security held for its
account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment received
by a clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date;
(7) the date or dates, or the method or methods, if any, by which such
date or dates shall be determined, on which the principal of such
Securities is payable;
(8) the rate or rates at which such Securities shall bear interest, if
any, or the method or methods, if any, by which such rate or rates are to
be determined, the date or dates, if any, from which such interest shall
accrue or the method or methods, if any, by which such date or dates are to
be determined, the Interest Payment Dates, if any, on which such interest
shall be payable and the Regular Record Date, if any, for the interest
payable on Registered Securities on any Interest Payment Date, whether and
under what circumstances Additional Amounts on such Securities or any of
them shall be payable, the notice, if any, to Holders regarding the
determination of interest on a floating rate Security and the manner of
giving such notice, and the basis upon which interest shall be calculated
if other than that of a 360-day year of twelve 30-day months;
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(9) if in addition to or other than The City of New York, the place or
places where the principal of, any premium and interest on or any
Additional Amounts with respect to such Securities shall be payable, any of
such Securities that are Registered Securities may be surrendered for
registration of transfer or exchange, any of such Securities may be
surrendered for conversion or exchange and notices or demands to or upon
the Issuer in respect of such Securities and this Indenture may be served,
the extent to which, or the manner in which, any interest payment or
Additional Amounts on a global Security on an Interest Payment Date, will
be paid and the manner in which any principal of or premium, if any, on any
global Security will be paid;
(10) whether any of such Securities are to be redeemable at the option
of the Issuer and, if so, the date or dates on which, the period or periods
within which, the price or prices at which and the other terms and
conditions upon which such Securities may be redeemed, in whole or in part,
at the option of the Issuer;
(11) if the Issuer is obligated to redeem or purchase any of such
Securities pursuant to any sinking fund or analogous provision or at the
option of any Holder thereof and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and the other
terms and conditions upon which such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation, and any
provisions for the remarketing of such Securities so redeemed or purchased;
(12) the denominations in which any of such Securities that are
Registered Securities shall be issuable if other than denominations of
$1,000 and any integral multiple thereof, and the denominations in which
any of such Securities that are Bearer Securities shall be issuable if
other than the denomination of $5,000;
(13) whether the Securities of the series will be convertible into or
exchangeable for other securities, and if so, the terms and conditions upon
which such Securities will be so convertible or exchangeable, and any
deletions from or modifications or additions to this Indenture to permit or
to facilitate the issuance of such convertible or exchangeable Securities
or the administration thereof;
(14) if other than the principal amount thereof, the portion of the
principal amount of any of such Securities that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion is to be determined;
(15) if other than Dollars, the Foreign Currency in which payment of
the principal of, any premium or interest on or any Additional Amounts with
respect to any of such Securities shall be payable;
(16) if the principal of, any premium or interest on or any Additional
Amounts with respect to any of such Securities are to be payable, at the
election of the Issuer or
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a Holder thereof or otherwise, in Dollars or in a Foreign Currency other
than that in which such Securities are stated to be payable, the date or
dates on which, the period or periods within which, and the other terms
and conditions upon which, such election may be made, and the time and
manner of determining the exchange rate between the Currency in which
such Securities are stated to be payable and the Currency in which such
Securities or any of them are to be paid pursuant to such election, and
any deletions from or modifications of or additions to the terms of this
Indenture to provide for or to facilitate the issuance of Securities
denominated or payable, at the election of the Issuer or a Holder thereof
or otherwise, in a Foreign Currency;
(17) whether the amount of payments of principal of, any premium or
interest on or any Additional Amounts with respect to such Securities may
be determined with reference to an index, formula or other method or
methods (which index, formula or method or methods may be based, without
limitation, on one or more Currencies, commodities, equity indices or other
indices), and, if so, the terms and conditions upon which and the manner in
which such amounts shall be determined and paid or payable;
(18) any deletions from, modifications of or additions to the Events
of Default or covenants of the Issuer with respect to any of such
Securities, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(19) if either or both of Section 402(2) relating to defeasance or
Section 402(3) relating to covenant defeasance shall not be applicable to
the Securities of such series, or any covenants in addition to those
specified in Section 402(3) relating to the Securities of such series which
shall be subject to covenant of defeasance, and any deletions from, or
modifications or additions to, the provisions of Article Four in respect of
the Securities of such series;
(20) if any of such Securities are to be issuable upon the exercise of
warrants, and the time, manner and place for such Securities to be
authenticated and delivered;
(21) if any of such Securities are to be issuable in global form and
are to be issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security) only upon receipt of certain certificates
or other documents or satisfaction of other conditions, then the form and
terms of such certificates, documents or conditions;
(22) if there is more than one Trustee, the identity of the Trustee
and, if not the Trustee, the identity of each Security Registrar, Paying
Agent or Authenticating Agent with respect to such Securities; and
(23) any other terms of such Securities and any deletions from or
modifications or additions to this Indenture in respect of such Securities.
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All Securities of any one series and all Coupons, if any,
appertaining to Bearer Securities of such series shall be substantially
identical except as to Currency of payments due thereunder, denomination and
the rate of interest, or method of determining the rate of interest, if any,
Maturity, and the date from which interest, if any, shall accrue and except
as may otherwise be provided by the Issuer in or pursuant to the Board
Resolution and set forth in the Officers' Certificate or in any indenture or
indentures supplemental hereto pertaining to such series of Securities. The
terms of the Securities of any series may provide, without limitation, that
the Securities shall be authenticated and delivered by the Trustee on
original issue from time to time upon telephonic or written order of persons
designated in the Officers' Certificate or supplemental indenture (telephonic
instructions to be promptly confirmed in writing by such person) and that
such persons are authorized to determine, consistent with such Officers'
Certificate or any applicable supplemental indenture, such terms and
conditions of the Securities of such series as are specified in such
Officers' Certificate or supplemental indenture. All Securities of any one
series need not be issued at the same time and, unless otherwise so provided
by the Issuer, a series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
Section 302. CURRENCY; DENOMINATIONS.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise
provided in or pursuant to this Indenture, Registered Securities denominated in
Dollars shall be issuable in registered form without Coupons in denominations of
$1,000 and any integral multiple thereof, and the Bearer Securities denominated
in Dollars shall be issuable in the denomination of $5,000. Securities not
denominated in Dollars shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Securities shall be executed on behalf of the Issuer by its Chairman
of the Board, one of its Vice Chairmen, its President, its Treasurer or one of
its Vice Presidents under its corporate seal reproduced thereon and attested by
its Secretary or one of its Assistant Secretaries. Coupons shall be executed on
behalf of the Issuer by the Treasurer or any Assistant Treasurer of the Issuer.
The signature of any of these officers on the Securities or any Coupons
appertaining thereto may be manual or facsimile.
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Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Issuer shall bind the Issuer, 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 or Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Securities, together with any Coupons
appertaining thereto, executed by the Issuer, to the Trustee for authentication
and, provided that the Board Resolution and Officers' Certificate or
supplemental indenture or indentures with respect to such Securities referred to
in Section 301 and an Issuer Order for the authentication and delivery of such
Securities have been delivered to the Trustee, the Trustee in accordance with
the Issuer Order and subject to the provisions hereof and of such Securities
shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities and any Coupons appertaining thereto, the Trustee
shall be entitled to receive, and (subject to Sections 315(a) through 315(d) of
the Trust Indenture Act) shall be fully protected in relying upon,
(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and Coupons, if
any, have been established in conformity with the provisions of this
Indenture;
(b) all conditions precedent to the authentication and delivery of
such Securities and Coupons, if any, appertaining thereto, have been
complied with and that such Securities, and Coupons, when completed by
appropriate insertions, executed under the Issuer's corporate seal and
attested by duly authorized officers of the Issuer, delivered by duly
authorized officers of the Issuer to the Trustee for authentication
pursuant to this Indenture, and authenticated and delivered by the Trustee
and issued by the Issuer in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legally valid and
binding obligations of the Issuer, enforceable against the Issuer in
accordance with their terms, except as enforcement thereof may be subject
to or limited by bankruptcy, insolvency, reorganization, moratorium,
arrangement, fraudulent conveyance, fraudulent transfer or other similar
laws relating to or affecting creditors' rights generally, and subject to
general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law) and will entitle the Holders thereof
to the benefits of this Indenture; such Opinion of Counsel need express no
opinion as to the availability of equitable remedies;
(c) all laws and requirements in respect of the execution and
delivery by the Issuer of such Securities and Coupons, if any, have been
complied with; and
(d) this Indenture has been qualified under the Trust Indenture Act;
and
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(2) an Officers' Certificate stating that, to the best knowledge of
the Persons executing such certificate, no event which is, or after notice or
lapse of time would become, an Event of Default with respect to any of the
Securities shall have occurred and be continuing.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and an Officers'
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before the
time of issuance of the first Security of such series. After any such first
delivery, any separate request by the Issuer that the Trustee authenticate
Securities of such series for original issue will be deemed to be a
certification by the Issuer that all conditions precedent provided for in this
Indenture relating to authentication and delivery of such Securities continue to
have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any 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 or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any Bearer Security in global form
shall be dated as of the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto 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 in Section 202 or 611 executed by or on behalf of the
Trustee or by the Authenticating Agent by the manual signature of one of its
authorized officers. Such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 306 or 307, the Trustee
shall not authenticate and deliver any Bearer Security unless all Coupons
appertaining thereto then matured have been detached and cancelled.
Section 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Issuer may
execute and deliver to the Trustee and, upon Issuer Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Issuer executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
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Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
are issued, the Issuer shall cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities of the same
series and containing terms and provisions that are identical to those of any
temporary Securities, such temporary Securities shall be exchangeable for such
definitive Securities upon surrender of such temporary Securities at an Office
or Agency for such Securities, without charge to any Holder thereof. Upon
surrender for cancellation of any one or more temporary Securities (accompanied
by any unmatured Coupons appertaining thereto), the Issuer shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations of the same series
and containing identical terms and provisions; PROVIDED, HOWEVER, that no
definitive Bearer Security, except as provided in or pursuant to this Indenture,
shall be delivered in exchange for a temporary Registered Security; and
PROVIDED, FURTHER, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in or pursuant to this Indenture. Unless otherwise provided in or
pursuant to this Indenture with respect to a temporary global Security, 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 305. REGISTRATION, TRANSFER AND EXCHANGE.
With respect to the Registered Securities of each series, if any, the
Issuer shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for each
series of Securities. The Issuer shall have the right to remove and replace
from time to time the Security Registrar for any series of Securities; provided
that no such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of Securities shall have been
appointed by the Issuer and shall have accepted such appointment by the Issuer.
In the event that the Trustee shall not be or shall cease to be Security
Registrar with respect to a series of Securities, it shall have the right to
examine the Security Register for such series at all reasonable times. There
shall be only one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security
of any series at any Office or Agency for such series, the Issuer shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same
series denominated as authorized in or pursuant to this Indenture, of a like
aggregate principal amount bearing a number not contemporaneously outstanding
and containing identical terms and provisions.
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At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of such
series may be exchanged for Registered Securities of such series containing
identical terms, denominated as authorized in or pursuant to this Indenture and
in the same aggregate principal amount, upon surrender of the Bearer Securities
to be exchanged at any Office or Agency for such series, with all unmatured
Coupons and all matured Coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured Coupon or Coupons
or matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Issuer
and the Trustee in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Issuer and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
PROVIDED, HOWEVER, that, except as otherwise provided in Section 1002, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor after the close of business at
such Office or Agency on (i) any Regular Record Date and before the opening of
business at such Office or Agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such Office or
Agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be (or, if such Coupon
is so surrendered with such Bearer Security, such Coupon shall be returned to
the Person so surrendering the Bearer Security), and interest or Defaulted
Interest, as the case may be, shall not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but shall be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture.
If provided in or pursuant to this Indenture with respect to
Securities of any series, at the option of the Holder, Registered Securities of
such series may be exchanged for Bearer Securities upon such terms and
conditions as may be provided in or pursuant to this Indenture with respect to
such series.
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Whenever any Securities are surrendered for exchange as contemplated
by the immediately preceding two paragraphs, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depository notifies the Issuer in writing
that it is unwilling or unable to continue as Depository for such global
Security or if at any time the Depository ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, and a
successor depository is not appointed by the Issuer within 60 days of the date
the Issuer is so informed in writing, (ii) the Issuer in its sole discretion
determines not to have such Securities represented by one or more global
Securities or (iii) an Event of Default has occurred and is continuing with
respect to the Securities. If the beneficial owners of interests in a global
Security are entitled to exchange such interests for definitive Securities as
the result of an event described in clause (i), (ii) or (iii) of the preceding
sentence, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Issuer shall
deliver to the Trustee definitive Securities in such form and denominations as
are required by or pursuant to this Indenture, and of the same series,
containing identical terms and in aggregate principal amount equal to the
principal amount of such global Security, executed by the Issuer. On or after
the earliest date on which such interests may be so exchanged, such global
Security shall be surrendered from time to time by the U.S. Depository or such
other Depository as shall be specified in the Issuer Order with respect thereto,
and in accordance with written instructions given to the Trustee and the U.S.
Depository or such other Depository, as the case may be (which instructions
shall be in writing but need not be contained in or accompanied by an Officers'
Certificate or be accompanied by an Opinion of Counsel), as shall be specified
in the Issuer Order with respect thereto to the Trustee, as the Issuer's agent
for such purpose, to be exchanged, in whole or in part, for definitive
Securities as described above without charge. The Trustee shall authenticate
and make available for delivery, in exchange for each portion of such
surrendered global Security, a like aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such global Security to be exchanged, which (unless such
Securities are not issuable both as Bearer Securities and as Registered
Securities, in which case the definitive Securities exchanged for the global
Security shall be issuable only in the form in which the Securities are
issuable, as provided in or pursuant to this Indenture) shall be in the form of
Bearer Securities or Registered Securities, or any combination thereof, as shall
be specified by the beneficial owner thereof, but subject to the satisfaction of
any certification or other requirements to the issuance of Bearer Securities;
PROVIDED, HOWEVER, that no such exchanges may occur during a period beginning at
the opening of business 15 days before any selection of Securities of the same
series to be redeemed and ending on the relevant Redemption Date; and PROVIDED,
FURTHER, that (unless otherwise provided in or pursuant to this Indenture) no
Bearer Security delivered in exchange for a portion of a global Security shall
be mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such global Security shall be returned by
the Trustee to such Depository or the U.S. Depository, as the case may be, or
such other Depository or U.S. Depository referred to above in accordance with
the instructions of the Issuer referred to above. If a Registered Security is
issued in exchange for any portion of
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a global Security after the close of business at the Office or Agency for
such Security where such exchange occurs on or after (i) any Regular Record
Date for such Security and before the opening of business at such Office or
Agency on the next Interest Payment Date, or (ii) any Special Record Date for
such Security and before the opening of business at such Office or Agency on
the related proposed date for payment of interest or Defaulted Interest, as
the case may be, interest shall not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such
Registered Security, but shall be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such global Security shall be payable
in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuer evidencing the same debt
and entitling the Holders thereof to the same benefits under this Indenture as
the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Issuer or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Issuer and the
Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge and any other
expenses (including fees and expenses of the Trustee) that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 905 or 1107 not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the
Issuer shall not be required (i) 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 selection for redemption of Securities of like tenor and
the same series under Section 1103 and ending at the close of business on the
day of such selection, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except in
the case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except, to the extent provided with respect to such Bearer Security, that such
Bearer Security may be exchanged for a Registered Security of like tenor and the
same series, provided that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent with
the provisions of this Indenture or (iv) to issue, register the transfer of or
exchange any Security which, in accordance with its terms, has been surrendered
for repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
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Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 306, the Issuer shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Issuer and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Issuer or the Trustee that such Security or Coupon has been acquired by a
bona fide purchaser, the Issuer shall execute and, upon the Issuer's request the
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the Security to
which a destroyed, lost or stolen Coupon appertains with all appurtenant Coupons
not destroyed, lost or stolen, a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the Coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in case
any mutilated, destroyed, lost or stolen Security or Coupon has become or is
about to become due and payable, the Issuer in its discretion may, instead of
issuing a new Security, pay such Security or Coupon; PROVIDED, HOWEVER, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an Office or Agency for such Securities located
outside the United States and, unless otherwise provided in or pursuant to this
Indenture, any interest on Bearer Securities and any Additional Amounts with
respect to such interest shall be payable only upon presentation and surrender
of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Issuer
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security, with any Coupons appertaining thereto issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen Coupon
appertains shall constitute a separate obligation of the Issuer, whether or not
the destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon 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 such series and any
Coupons, if any, duly issued hereunder.
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The provisions of this Section, as amended or supplemented pursuant to
this Indenture with respect to particular Securities or generally, shall be
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 or Coupons.
Section 307. PAYMENT OF INTEREST AND CERTAIN ADDITIONAL AMOUNTS;
RIGHTS TO INTEREST AND CERTAIN ADDITIONAL AMOUNTS
PRESERVED.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of
business on the Regular Record Date for such interest. Unless otherwise
provided in or pursuant to this Indenture, in case a Bearer Security is
surrendered in exchange for a Registered Security after the close of business at
an Office or Agency for such Security on any Regular Record Date therefor and
before the opening of business at such Office or Agency on the next succeeding
Interest Payment Date therefor, such Bearer Security shall be surrendered
without the Coupon relating to such Interest Payment Date and interest shall not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but shall be payable only to the
Holder of such Coupon when due in accordance with the provisions of this
Indenture.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Issuer, at its election in each case,
as provided in Clause (1) or (2) below:
(1) the Issuer may elect to make payment of any Defaulted Interest to
the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be 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 Issuer shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on such
Registered Security and the date of the proposed payment, and at the same
time the Issuer 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 on or prior to the date of the proposed payment, such money when so
deposited to be held in trust for the benefit of the Person 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
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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
Issuer of such Special Record Date and, in the name and at the expense of
the Issuer 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 the Holder of such Registered Security (or a
Predecessor Security thereof) at his address as it appears in the
Security 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 Issuer cause a similar notice to be published at least once in an
Authorized Newspaper 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 Person in whose name such Registered Security (or a
Predecessor Security thereof) shall be registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2). In case a Bearer Security is
surrendered at the Office or Agency for such Security in exchange for a
Registered Security after the close of business at such Office or Agency
on any Special Record Date and before the opening of business at such
Office or Agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the Coupon
relating to such Defaulted Interest and Defaulted Interest shall not be
payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but shall be
payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
(2) the Issuer may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Issuer to the Trustee of the proposed payment pursuant to this Clause, such
payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Issuer, interest on Registered Securities that
bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
transfer to a U.S. Dollar account maintained by the payee with a bank located in
the United States in accordance with the provisions of such bank.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
In the case of any Registered Security of any series that is
convertible, which Registered Security is converted after any Regular Record
Date and on or prior to the next
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succeeding Interest Payment Date (other than any Registered Security with
respect to which the Stated Maturity is prior to such Interest Payment Date),
interest with respect to which the Stated Maturity is on such Interest Payment
Date shall be payable on such Interest Payment Date notwithstanding such
conversion, and such interest (whether or not punctually paid or duly provided
for) shall be paid to the Person in whose name that Registered Security (or one
or more predecessor Registered Securities) is registered at the close of
business on such Regular Record Date. Except as otherwise expressly provided in
the immediately preceding sentence, in the case of any Registered Security which
is converted, interest with respect to which the Stated Maturity is after the
date of conversion of such Registered Security shall not be payable.
Section 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name such Registered Security is registered in the
Security Register as the owner of such Registered Security for the purpose of
receiving payment of principal of, any premium and (subject to Sections 305 and
307) interest on and any Additional Amounts with respect to such Registered
Security and for all other purposes whatsoever, whether or not any payment with
respect to such Registered Security shall be overdue, and neither the Issuer,
nor the Trustee or any agent of the Issuer or the Trustee shall be affected by
notice to the contrary.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall be overdue, and
neither the Issuer, nor the Trustee or any agent of the Issuer or the Trustee
shall be affected by notice to the contrary.
No Holder of any beneficial interest in any global Security held on
its behalf by a Depository shall have any rights under this Indenture with
respect to such global Security, and such Depository may be treated by the
Issuer, the Trustee, and any agent of the Issuer or the Trustee as the owner of
such global Security for all purposes whatsoever. None of the Issuer, the
Trustee, any Paying Agent or the Security Registrar will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a global Security or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
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Section 309. CANCELLATION.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be cancelled promptly by the Trustee. The Issuer may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Issuer may have acquired in any manner whatsoever,
and all Securities so delivered shall be cancelled promptly by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by or
pursuant to this Indenture. All cancelled Securities and Coupons held by the
Trustee shall be destroyed by the Trustee, unless by an Issuer Order delivered
in a timely fashion the Issuer directs their return to it.
Section 310. COMPUTATION OF INTEREST.
Except as otherwise provided in or pursuant to this Indenture or in
any Security, interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. SATISFACTION AND DISCHARGE.
Upon the direction of the Issuer by an Issuer Order, this Indenture
shall cease to be of further effect with respect to any series of Securities
specified in such Issuer Order and any Coupons appertaining thereto, and the
Trustee, on receipt of an Issuer Order, at the expense of the Issuer, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when
(1) either
(a) all Securities of such series theretofore authenticated and
delivered and all Coupons appertaining thereto (other than (i) Coupons
appertaining to Bearer Securities of such series surrendered in exchange
for Registered Securities of such series and maturing after such exchange
whose surrender is not required or has been waived as provided in Section
305, (ii) Securities and Coupons of such series which have been destroyed,
lost or stolen and which have been replaced or paid as provided in Section
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306, (iii) Coupons appertaining to Securities of such series called for
redemption and maturing after the relevant Redemption Date whose surrender
has been waived as provided in Section 1107, and (iv) Securities and
Coupons of such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Issuer and
thereafter repaid to the Issuer or discharged from such trust, as provided
in Section 1003) have been delivered to the Trustee for cancellation; or
(b) all Securities of such series and, in the case of (i) or
(ii) below, any Coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) if redeemable at the option of the Issuer, 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 Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for such
purpose, money in the Currency in which such Securities are payable in an
amount sufficient to pay and discharge the entire indebtedness on such
Securities and any Coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation, including the principal of, any premium
and interest on, and any Additional Amounts with respect to such Securities
and any Coupons appertaining thereto, to the date of such deposit (in the
case of Securities which have become due and payable) or to the Maturity
thereof, as the case may be;
(2) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer with respect to the Outstanding Securities of such
series and any Coupons appertaining thereto; and
(3) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
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Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Issuer to the
Trustee under Section 606 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section, the obligations
of the Issuer and the Trustee with respect to the Securities of such series
under Sections 305, 306, 403, 1002 and 1003, with respect to the payment of
Additional Amounts, if any, with respect to such Securities as contemplated by
Section 1004 (but only to the extent that the Additional Amounts payable with
respect to such Securities exceed the amount deposited in respect of such
Additional Amounts pursuant to Section 401(1)(b)), shall survive the termination
of this Agreement or the earlier resignation or removal of the Trustee.
Section 402. DEFEASANCE AND COVENANT DEFEASANCE.
(1) Unless pursuant to Section 301, either or both of (i) defeasance
of the Securities of or within a series under clause (2) of this Section 402
shall not be applicable with respect to the Securities of such series or (ii)
covenant defeasance of the Securities of or within a series under clause (3) of
this Section 402 shall not be applicable with respect to the Securities of such
series, then such provisions, together with the other provisions of this Section
402 (with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
Coupons appertaining thereto, and the Issuer may at its option by Board
Resolution, at any time, with respect to such Securities and any Coupons
appertaining thereto, elect to have Section 402(2) or Section 402(3) be applied
to such Outstanding Securities and any Coupons appertaining thereto upon
compliance with the conditions set forth below in this Section 402.
(2) Upon the Issuer's exercise of the above option applicable to this
Section 402(2) with respect to any Securities of or within a series, the Issuer
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any Coupons appertaining thereto on the date the
conditions set forth in clause (4) of this Section 402 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Issuer shall be deemed to have paid and discharged the entire Indebtedness
represented by such Outstanding Securities and any Coupons appertaining thereto,
which shall thereafter be deemed to be "Outstanding" only for the purposes of
clause (5) of this Section 402 and the other Sections of this Indenture referred
to in clauses (i) and (ii) below, and to have satisfied all of its other
obligations under such Securities and any Coupons appertaining thereto and this
Indenture insofar as such Securities and any Coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Issuer, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of such Outstanding Securities and any Coupons appertaining thereto to
receive, solely from the trust fund described in clause (4) of this Section 402
and as more fully set forth in such Section, payments in respect of the
principal of (and premium, if any) and interest, if any, on, and Additional
Amounts, if any, with respect to, such Securities and any Coupons appertaining
thereto when such payments are due, (ii) the obligations of the Issuer and the
Trustee with respect to such Securities under Sections 305, 306, 1002 and 1003
and with respect to the payment of Additional
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Amounts, if any, on such Securities as contemplated by Section 1004 (but only
to the extent that the Additional Amounts payable with respect to such
Securities exceed the amount deposited in respect of such Additional Amounts
pursuant to Section 401(4)(a) below), (iii) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (iv) this Section 402.
The Issuer may exercise its option under this Section 402(2) notwithstanding
the prior exercise of its option under clause (3) of this Section 402 with
respect to such Securities and any Coupons appertaining thereto.
(3) Upon the Issuer's exercise of the above option applicable to this
Section 402(3) with respect to any Securities of or within a series, the Issuer
shall, to the extent specified pursuant to Section 301, be released from any
covenant applicable to such Securities, with respect to such Outstanding
Securities and any Coupons appertaining thereto on and after the date the
conditions set forth in clause (4) of this Section 402 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any Coupons
appertaining thereto shall thereafter be deemed to be not "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with any such covenant, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Securities and any Coupons appertaining thereto, the Issuer may omit to comply
with, and shall have no liability in respect of, any term, condition or
limitation set forth in any such Section or such other covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any such Section or
such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a default or an Event of Default
under Section 501(4) or 501(8) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and Coupons
appertaining thereto shall be unaffected thereby.
(4) The following shall be the conditions to application of clause
(2) or (3) of this Section 402 to any Outstanding Securities of or within a
series and any Coupons appertaining thereto:
(a) the Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Section 402 applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
Coupons appertaining thereto, (1) an amount in Dollars or in such Foreign
Currency in which such Securities and any Coupons appertaining thereto are
then specified as payable at Stated Maturity, or (2) Government Obligations
applicable to such Securities and Coupons appertaining thereto (determined
on the basis of the Currency in which such Securities and Coupons
appertaining thereto are then specified as payable at Stated Maturity)
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment of principal of (and premium, if any)
and interest, if any, on such Securities and any
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Coupons appertaining thereto, money in an amount, or (3) a combination
thereof, in any case, in an amount, sufficient, without consideration of
any reinvestment of such principal and interest, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (y) the principal of (and premium, if any)
and interest, if any, on such Outstanding Securities and any Coupons
appertaining thereto on the Stated Maturity of such principal or installment
of principal or interest and (z) any mandatory sinking fund payments or
analogous payments applicable to such Outstanding Securities and any Coupons
appertaining thereto on the day on which such payments are due and payable
in accordance with the terms of this Indenture and of such Securities and
any Coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Issuer is a party
or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to such Securities
and any Coupons appertaining thereto shall have occurred and be continuing
on the date of such deposit and, with respect to defeasance only, at any
time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of this Section 402,
the Issuer shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Issuer has received from the Internal Revenue Service
a letter ruling, or there has been published by the Internal Revenue
Service a Revenue Ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
Coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(e) In the case of an election under clause (3) of this Section 402,
the Issuer shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of such Outstanding Securities and any Coupons
appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant defeasance
had not occurred.
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(f) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance or covenant defeasance under clause (2) or (3)
of this Section 402 (as the case may be) have been complied with.
(g) Notwithstanding any other provisions of this Section 402(4), such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Issuer in connection therewith pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section 1003,
all money and Government Obligations (or other property as may be provided
pursuant to Section 301) (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
402(5) and Section 403, the "Trustee") pursuant to clause (4) of Section 402 in
respect of any Outstanding Securities of any series and any Coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any Coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any Coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified in or pursuant to this Indenture or any
Security, if, after a deposit referred to in Section 402(4)(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 402(4)(a) has been made in respect of such Security, or (b)
a Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 402(4)(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on, and
Additional Amounts, if any, with respect to, such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property deposited
in respect of such Security into the Currency in which such Security becomes
payable as a result of such election or Conversion Event based on (x) in the
case of payments made pursuant to clause (a) above, the applicable market
exchange rate for such Currency in effect on the second Business Day prior to
each payment date, or (y) with respect to a Conversion Event, the applicable
market exchange rate for such Foreign Currency in effect (as nearly as feasible)
at the time of the Conversion Event.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge, imposed on or assessed against the Government Obligations
deposited pursuant to this Section 402 or the principal or interest received in
respect thereof other than any such tax, fee or
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other charge which by law is for the account of the Holders of such
Outstanding Securities and any Coupons appertaining thereto.
Anything in this Section 402 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon Issuer Request
any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in clause (4) of this Section 402 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Section 402.
Section 403. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations deposited with the Trustee pursuant to Section
401 or 402 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the Coupons and this Indenture, to the payment,
either directly or through any Paying Agent (including the Issuer acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal, premium, interest and Additional Amounts for whose payment
such money has or Government Obligations have been deposited with or received by
the Trustee; but such money and Government Obligations need not be segregated
from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
Section 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to 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),
unless such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Board Resolution or Officers' Certificate establishing
the terms of such Series pursuant to this Indenture:
(1) default in the payment of any interest on or any Additional
Amounts payable in respect of any Security of such series when such interest
becomes or such Additional Amounts become due and payable, and continuance of
such default for a period of 30 days; or
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(2) default in the payment of the principal of or any premium on any
Security of such series when it becomes due and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment when and as
due by the terms of a Security of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Issuer in this Indenture or the Securities (other than a
covenant or warranty a default in the performance or the breach of which is
elsewhere in this Section specifically dealt with or which has been expressly
included in this Indenture solely for the benefit of a series of Securities
other than such series), and continuance of such default or breach for a period
of 60 days after there has been given, by registered or certified mail, to the
Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of such series, a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(5) if any event of default as defined in any mortgage, indenture or
instrument under which there may be issued, or by which there may be secured or
evidenced, any Indebtedness of the Issuer, whether such Indebtedness now exists
or shall hereafter be created, shall happen and shall result in such
Indebtedness in principal amount in excess of $10,000,000 becoming or being
declared due and payable prior to the date on which it would otherwise become
due and payable, and such acceleration shall not be rescinded or annulled, or
such Indebtedness shall not have been discharged, within a period of 30 days
after there shall have been given, by registered or certified mail, to the
Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of such series, a
written notice specifying such event of default and requiring the Issuer to
cause such acceleration to be rescinded or annulled or to cause such
Indebtedness to be discharged and stating that such notice is a "Notice of
Default" hereunder; or
(6) the Issuer shall fail within 60 days to pay, bond or otherwise
discharge any uninsured judgment or court order for the payment of money in
excess of $10,000,000, which is not stayed on appeal or is not otherwise being
appropriately contested in good faith; or
(7) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the Issuer in an
involuntary proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(b) a decree or order adjudging the Issuer to be insolvent, or
approving a petition seeking reorganization, arrangement, adjustment or
composition of the Issuer and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or
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(c) a final and non-appealable order appointing a custodian,
receiver, liquidator, assignee, trustee or other similar official of the
Issuer or of any substantial part of the property of the Issuer or ordering
the winding up or liquidation of the affairs of the Issuer; or
(8) the commencement by the Issuer of a voluntary proceeding under
any applicable bankruptcy, insolvency, reorganization or other similar law or of
a voluntary proceeding seeking to be adjudicated insolvent or the consent by the
Issuer to the entry of a decree or order for relief in an involuntary proceeding
under any applicable bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any insolvency proceedings against it, or the filing
by the Issuer of a petition or answer or consent seeking reorganization or
relief under any applicable law, or the consent by the Issuer to the filing of
such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee or similar official of the Issuer or any
substantial part of the property of the Issuer or the making by the Issuer of an
assignment for the benefit of creditors, or the taking of corporate action by
the Issuer in furtherance of any such action; or
(9) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event of Default specified in clause (7) or (8)
of Section 501) occurs and is continuing, then the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of such series
may declare the principal of all the Securities of such series, or such lesser
amount as may be provided for in the Securities of such series, to be due and
payable immediately, by a notice in writing to the Issuer (and to the Trustee if
given by the Holders), and upon any such declaration such principal or such
lesser amount shall become immediately due and payable.
If an Event of Default specified in clause (7) or (8) of Section 501
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or such lesser amount as may be provided for in the
Securities of such series) shall IPSO FACTO become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder of any Security of that series.
At any time after Securities of any series have been accelerated and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of not less
than a majority in principal amount of the Outstanding Securities of such
series, by written notice to the Issuer and the Trustee, may rescind and annul
such declaration and its consequences if
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(1) the Issuer has paid or deposited with the Trustee a sum of money
sufficient to pay
(a) all overdue installments of any interest on and Additional
Amounts with respect to all Securities of such series and any Coupon
appertaining thereto,
(b) the principal of and any premium on any Securities of such series
which have become due otherwise than by such declaration of acceleration
and interest thereon and any Additional Amounts with respect thereto at the
rate or rates borne by or provided for in such Securities,
(c) to the extent that payment of such interest or Additional Amounts
is lawful, interest upon overdue installments of any interest and
Additional Amounts at the rate or rates borne by or provided for in such
Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee under
Section 606; and
(2) all Events of Default with respect to Securities of such series,
other than the non-payment of the principal of, any premium and interest on, and
any Additional Amounts with respect to Securities of such series which shall
have become due solely by such declaration of acceleration, shall have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Issuer covenants that if
(1) default is made in the payment of any installment of interest on
or any Additional Amounts with respect to any Security or any Coupon
appertaining thereto when such interest or Additional Amounts shall have become
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of or any premium
on any Security at its Maturity,
the Issuer shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest and Additional Amounts at
the
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rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount of money as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 606.
If the Issuer fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Issuer or any other obligor upon such Securities and any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable in
the manner provided by law out of the property of the Issuer or any other
obligor upon such Securities and any Coupons appertaining thereto, 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
and any Coupons appertaining thereto by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
Section 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Issuer or any other obligor upon the
Securities or the property of the Issuer or such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Issuer for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(1) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of the
principal and any premium, interest and Additional Amounts owing and unpaid
in respect of the Securities and any Coupons appertaining thereto and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel) and of the Holders of Securities or any
Coupons allowed in such judicial proceeding; and
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(2) to collect and receive any monies 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 of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any Coupon in any such proceeding.
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of a
Security or Coupon in respect of which such judgment has been recovered.
Section 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, or any
premium, interest or Additional Amounts, upon presentation of the Securities or
Coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and any Coupons for principal and any premium, interest and
Additional
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Amounts 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 aggregate amounts due and payable on such Securities
and Coupons for principal and any premium, interest and Additional Amounts,
respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 507. LIMITATIONS ON SUITS.
No Holder of any Security of any series or any Coupons appertaining
thereto shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of such
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such 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 indemnity
satisfactory to it against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
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Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND
ANY PREMIUM, INTEREST AND ADDITIONAL AMOUNTS.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject
to Sections 305 and 307) interest on, and any Additional Amounts with respect to
such Security or payment of such Coupon, as the case may be, on the respective
Stated Maturity or Maturities therefor specified in such Security or Coupon (or,
in the case of redemption, on the Redemption Date or, in the case of repayment
at the option of such Holder if provided in or pursuant to this Indenture, on
the date such repayment is due) and to institute suit for the enforcement of any
such payment, and such right shall not be impaired without the consent of such
Holder.
Section 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security or a Coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Issuer, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
Section 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to each and every Holder of a Security or a Coupon is
intended to be exclusive of any other right or remedy, and every right and
remedy, to the extent permitted by law, shall 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, to the extent permitted by law, prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security
or Coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to any Holder of a Security or
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a Coupon may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by such Holder, as the case may be.
Section 512. CONTROL BY HOLDERS OF SECURITIES.
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 and any Coupons appertaining thereto, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or with the Securities of any series,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of the
other Holders of Securities of such series not joining in such action.
Section 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of, any premium or interest on,
or any Additional Amounts with respect to, any Security of such series or
any Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
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Section 514. WAIVER OF STAY OR EXTENSION LAWS.
The Issuer covenants that (to the extent that it may lawfully do so)
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Issuer expressly waives (to the extent
that it may lawfully do so) 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.
Section 515. 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 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 any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions
of this Section 515 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 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, if any, on or Additional Amounts,
if any, with respect to any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date, and, in the case of repayment, on or after the date
for repayment) or for the enforcement of the right, if any, to convert or
exchange any Security into Common Stock or other securities in accordance with
its terms.
ARTICLE SIX
THE TRUSTEE
Section 601. CERTAIN RIGHTS OF TRUSTEE.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the 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, coupon or other
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paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request or an Issuer Order (in each
case, other than delivery of any Security, together with any Coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) 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 shall be herein specifically prescribed) may, in the absence
of bad faith on its part, conclusively rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel 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;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the Holders of Securities of any series or
any Coupons appertaining thereto pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
satisfactory to it against the costs, expenses (including legal fees and
expenses) and liabilities which might be incurred by it in compliance with
such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine,
during business hours and upon reasonable notice, the books, records and
premises of the Issuer, personally or by agent or attorney; and
(7) 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.
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Section 602. NOTICE OF DEFAULTS.
Within 90 days after 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 entitled to receive reports pursuant to
Section 703(3), notice of such default hereunder known to the Trustee, 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, if any, on, or Additional Amounts or any sinking fund or purchase
fund installment with respect to, 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 determine that the withholding
of such notice is in the best interest of the Holders of Securities and Coupons
of such series; and PROVIDED, FURTHER, that in the case of any default of the
character specified in Section 501(5) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "DEFAULT" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
Section 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons shall be taken as
the statements of the Issuer 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 or the Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Issuer
are true and accurate, subject to the qualifications set forth therein. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Issuer of the Securities or the proceeds thereof.
Section 604. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the Issuer,
in its individual or any other capacity, may become the owner or pledgee of
Securities or Coupons and, subject to Sections 310(b) and 311 of the Trust
Indenture Act, may otherwise deal with the Issuer with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other Person.
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Section 605. MONEY HELD IN TRUST.
Except as provided in Section 403 and Section 1003, money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Issuer.
Section 606. COMPENSATION AND REIMBURSEMENT.
The Issuer agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by the Trustee hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to the Trustee's negligence
or bad faith; and
(3) to indemnify the Trustee and its agents, officers, directors and
employees for, and to hold them harmless against, any loss, liability or
expense incurred without negligence or bad faith on their part, arising out
of or in connection with the acceptance or administration of the trust or
trusts hereunder or the transactions contemplated by this Agreement,
including the costs and expenses of defending themselves against any claim
or liability in connection with the exercise or performance of any of their
powers or duties hereunder, except to the extent that any such loss,
liability or expense was due to the Trustee's negligence or bad faith.
As security for the performance of the obligations of the Issuer under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, and premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
Any compensation or expense incurred by the Trustee after a default
specified by Section 501 is intended to constitute an expense of administration
under any then applicable bankruptcy or insolvency law. "Trustee" for purposes
of this Section 606 shall include any predecessor Trustee but the negligence or
bad faith of any Trustee shall not affect the rights of any other Trustee under
this Section 606.
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Section 607. CORPORATE TRUSTEE REQUIRED.
There shall at all times be a Trustee hereunder that is a
Corporation, organized and doing business under the laws of the United States
of America, any state thereof or the District of Columbia, eligible under
Section 310(a)(1) of the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act and that has a combined
capital and surplus (computed in accordance with Section 310(a)(2) of the
Trust Indenture Act) of at least $50,000,000 subject to supervision or
examination by Federal or state authority. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
Section 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(1) 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 pursuant to Section 609.
(2) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Issuer. If the instrument of acceptance by a successor Trustee required by
Section 609 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 such series.
(3) 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 the Issuer.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations imposed
upon it under Section 310(b) of the Trust Indenture Act with respect to
Securities of any series after written request therefor by the Issuer or
any Holder of a Security of such series who has been a bona fide Holder of
a Security of such series for at least six months, or
(b) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Issuer or any
such Holder, or
(c) 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,
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then, in any such case, (i) the Issuer, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of
such series, or (ii) subject to Section 315(e) of the Trust Indenture Act,
any Holder of a Security who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities of such series and the
appointment of a successor Trustee or Trustees.
(5) 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 Issuer, by or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to
the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of
Section 609. 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 Issuer and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section 609, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Issuer. If no
successor Trustee with respect to the Securities of any series shall have
been so appointed by the Issuer or the Holders of Securities and accepted
appointment in the manner required by Section 609, any Holder of a Security
who has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(6) The Issuer 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 Registered Securities, if any, of such series as
their names and addresses appear in the Security Register and, if Securities
of such series are issued as Bearer Securities, by publishing notice of such
event once in an Authorized Newspaper in each Place of Payment located
outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
Section 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(1) Upon the appointment hereunder of any successor Trustee with
respect to all Securities, such successor Trustee so appointed shall execute,
acknowledge and deliver to the Issuer and 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,
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without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties hereunder of the retiring Trustee; but, on
the request of the Issuer or such successor Trustee, such retiring Trustee,
upon payment of its charges, shall execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of
the retiring Trustee and, subject to Section 1003, shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject nevertheless to its claim, if any,
provided for in Section 606.
(2) Upon the appointment hereunder of any successor Trustee with
respect to the Securities of one or more (but not all) series, the Issuer,
the retiring Trustee and such successor Trustee 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, such
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees co-trustees
of the same trust, 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 that no Trustee shall be
responsible for any notice given to, or received by, or any act or failure to
act on the part of any other Trustee hereunder, and, upon the execution and
delivery of such supplemental indenture, the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein, such
retiring Trustee shall have no further responsibility for the exercise of
rights and powers or for the performance of the duties and obligations vested
in the Trustee under this Indenture with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates other
than as hereinafter expressly set forth, 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 with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Issuer or such successor Trustee,
such retiring Trustee, upon payment of its charges with respect to the
Securities of that or those series to which the appointment of such successor
relates and subject to Section 1003 shall duly assign, transfer and deliver
to such successor Trustee, to the extent contemplated by such supplemental
indenture, the 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, subject to its claim, if any,
provided for in Section 606.
(3) Upon request of any Person appointed hereunder as a successor
Trustee, the Issuer shall execute any and all instruments for more fully and
certainly vesting in and
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confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (1) or (2) of this Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a successor
Trustee unless at the time of such acceptance such successor Person shall be
qualified and eligible under this Article.
Section 610. 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,
without the execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities shall have been
authenticated but not delivered by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities.
Section 611. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint one or more Authenticating Agents acceptable
to the Issuer with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that
or those series issued upon original issue, exchange, registration of
transfer, partial redemption or partial repayment or pursuant to Section 306,
and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf
of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Issuer and,
except as provided in or pursuant to this Indenture, shall at all times be a
corporation that would be permitted by the Trust Indenture Act to act as
trustee under an indenture qualified under the Trust Indenture Act, is
authorized under applicable law and by its charter to act as an
Authenticating Agent and has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect specified in this Section.
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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 agency or corporate trust business of an Authenticating
Agent, shall be the successor of such 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 the Issuer. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and the Issuer. 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 Issuer and shall (i)
mail written notice of such appointment by first-class mail, postage prepaid,
to all Holders of Registered Securities, if any, of the series with respect
to which such Authenticating Agent shall serve, as their names and addresses
appear in the Security Register, and (ii) if Securities of the series are
issued as Bearer Securities, publish notice of such appointment at least once
in an Authorized Newspaper in the place where such successor Authenticating
Agent has its principal office if such office is located outside the United
States. Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Issuer agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to
each Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more
series of Securities pursuant to this Section, the Securities of such series
may have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication in
substantially the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
As Trustee
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By ----------------------------------------------
As Authenticating Agent
By ----------------------------------------------
Authorized Officer
If all of the Securities of any series may not be originally issued
at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of
Payment where the Issuer wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested in writing
(which writing need not be accompanied by or contained in an Officers'
Certificate by the Issuer), shall appoint in accordance with this Section an
Authenticating Agent having an office in a Place of Payment designated by the
Issuer with respect to such series of Securities.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND ISSUER
Section 701. ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
In accordance with Section 312(a) of the Trust Indenture Act, the
Issuer shall furnish or cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each series not later
than August 1 and February 1 of the year or upon such other dates as are
set forth in or pursuant to the Board Resolution or indenture supplemental
hereto authorizing such series, a list, in each case in such form as the
Trustee may reasonably require, of the names and addresses of Holders as of
the applicable date, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Issuer of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished,
PROVIDED, HOWEVER, that so long as the Trustee is the Security Registrar no
such list shall be required to be furnished.
Section 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
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Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Issuer and the Trustee that neither the Issuer, the
Trustee, any Paying Agent or any Security Registrar shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders of Securities in accordance with Section 312(c) of
the Trust Indenture Act, regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Section 312(b) of the
Trust Indenture Act.
Section 703. REPORTS BY TRUSTEE.
(1) Within 60 days after September 15 of each year commencing with
the first September 15 following the first issuance of Securities pursuant to
Section 301, if required by Section 313(a) of the Trust Indenture Act, the
Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture
Act, a brief report dated as of such September 15 with respect to any of the
events specified in said Section 313(a) which may have occurred since the
later of the immediately preceding September 15 and the date of this
Indenture.
(2) The Trustee shall transmit the reports required by Section
313(a) of the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d) of the Trust
Indenture Act.
Section 704. REPORTS BY ISSUER.
The Issuer, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Issuer may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Issuer is not required to file information,
documents or reports pursuant to either of said Sections, then it shall file
with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information,
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documents and reports with respect to compliance by the Issuer, with the
conditions and covenants of this Indenture as may be required from time to
time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed from time to
time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Issuer with or into any
other Person or Persons (whether or not affiliated with the Issuer), or
successive consolidations or mergers in which the Issuer or its successor or
successors shall be a party or parties, or shall prevent any conveyance,
transfer or lease of the property of the Issuer as an entirety or
substantially as an entirety, to any other Person (whether or not affiliated
with the Issuer); PROVIDED, HOWEVER, that:
(1) in case the Issuer shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets as an entirety
or substantially as an entirety to any Person, the entity formed by such
consolidation or into which the Issuer is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Issuer as an entirety or substantially as an entirety shall be a Corporation
organized and existing under the laws of the United States of America, any
state thereof or the District of Columbia and shall expressly assume, by an
indenture (or indentures, if at such time there is more than one Trustee)
supplemental hereto, executed by the successor Person and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of, any premium and interest on and any Additional Amounts with
respect to all the Securities and the performance of every obligation in this
Indenture and the Outstanding Securities on the part of the Issuer to be
performed or observed and shall provide for conversion or exchange rights in
accordance with the provisions of the Securities of any series that are
convertible or exchangeable into other securities;
(2) immediately after giving effect to such transaction, no Event of
Default or event which, after notice or lapse of time, or both, would become
an Event of Default, shall have occurred and be continuing; and
(3) either the Issuer or the successor Person shall have delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger,
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conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
Section 802. SUCCESSOR PERSON SUBSTITUTED FOR ISSUER.
Upon any consolidation by the Issuer with or merger of the Issuer
into any other Person or any conveyance, transfer or lease of the properties
and assets of the Issuer substantially as an entirety to any Person in
accordance with Section 801, the successor Person formed by such
consolidation or into which the Issuer 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 Issuer under this Indenture with the
same effect as if such successor Person had been named as the Issuer herein;
and thereafter, except in the case of a lease, the predecessor Person shall
be released from all obligations and covenants under this Indenture, the
Securities and the Coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or Coupons, the
Issuer (when authorized by or pursuant to a Board Resolution) and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any
of the following purposes:
(1) to evidence the succession of another Person to the Issuer, and
the assumption by any such successor of the covenants of the Issuer contained
herein and in the Securities; or
(2) to add to the covenants of the Issuer for the benefit of the
Holders of all or any series of Securities (as shall be specified in such
supplemental indenture or indentures) or to surrender any right or power
herein conferred upon the Issuer; or
(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change
or eliminate any restrictions on the payment of principal of, any premium or
interest on or any Additional Amounts with respect to Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities, to
permit Bearer Securities to be exchanged for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form, provided any such action
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shall not adversely affect the interests of the Holders of Securities of any
series or any Coupons appertaining thereto in any material respect; or
(4) to establish the form or terms of Securities of any series and
any Coupons appertaining thereto as permitted by Sections 201 and 301; or
(5) 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 609; or
(6) to cure any ambiguity or to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or questions
arising under this Indenture which shall not adversely affect the interests
of the Holders of Securities of any series then Outstanding or any Coupons
appertaining thereto in any material respect; or
(7) to add to, delete from or revise the conditions, limitations
and restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(8) to add any additional Events of Default with respect to all or
any series of Securities (as shall be specified in such supplemental
indenture); or
(9) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Four, PROVIDED that
any such action shall not adversely affect the interests of any Holder of a
Security of such series and any Coupons appertaining thereto or any other
Security or Coupon in any material respect; or
(10) to make provisions with respect to conversion or exchange
rights of Holders of Securities of any series; or
(11) to amend or supplement any provision contained herein or in any
supplemental indenture, PROVIDED that no such amendment or supplement shall
materially adversely affect the interests of the Holders of any Securities
then Outstanding.
Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than 66-2/3% in
principal amount of the Outstanding Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the Issuer
and the Trustee, and the Trustee may enter into an indenture or
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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 or of the Securities of such series; PROVIDED,
HOWEVER, that no such supplemental indenture, without the consent of the Holder
of each Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or any premium or
installment of interest on or any Additional Amounts with respect to, any
Security, or reduce the principal amount thereof or the rate (or modify the
calculation of such rate) of interest thereon or any Additional Amounts with
respect thereto, or any premium payable upon the redemption thereof or
otherwise, or change the obligation of the Issuer to pay Additional Amounts
pursuant to Section 1004 (except as contemplated by Section 801(1) and permitted
by Section 901(1)), or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the amount
thereof provable in bankruptcy pursuant to Section 504, change the redemption
provisions or adversely affect the right of repayment at the option of any
Holder as contemplated by Article Thirteen, or change the Place of Payment,
Currency in which the principal of, any premium or interest on, or any
Additional Amounts with respect to any Security 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, in the case of repayment at the option of the Holder, on or after the date
for repayment or in the case of change in control, 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
reduce the requirements of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1006, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby, or
(4) make any change that adversely affects the right to convert or
exchange any Security for other securities in accordance with its terms.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which shall have been included expressly and
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
As a condition to executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trust created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Section 315 of the Trust Indenture Act)
shall be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
Section 905. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Issuer shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Issuer, to any such supplemental indenture may be
prepared and executed by the Issuer and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 906. 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.
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ARTICLE TEN
COVENANTS
Section 1001. PAYMENT OF PRINCIPAL, ANY PREMIUM, INTEREST AND
ADDITIONAL AMOUNTS.
The Issuer covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal of,
any premium and interest on and any Additional Amounts with respect to the
Securities of such series in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer
Security on or before the Maturity thereof, and any Additional Amounts payable
with respect to such interest, shall be payable only upon presentation and
surrender of the Coupons appertaining thereto for such interest as they
severally mature.
Section 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Issuer shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Issuer in respect of the Securities of such series
relating thereto and this Indenture may be served. If Securities of a series
are issuable as Bearer Securities, the Issuer shall maintain, subject to any
laws or regulations applicable thereto, an Office or Agency in a Place of
Payment for such series which is located outside the United States where
Securities of such series and any Coupons appertaining thereto may be presented
and surrendered for payment; PROVIDED, HOWEVER, that if the Securities of such
series are listed on The Stock Exchange of the United Kingdom and the Republic
of Ireland or the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require, the Issuer
shall maintain a Paying Agent in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the Securities
of such series are listed on such exchange. The Issuer will give prompt written
notice to the Trustee of the location, and any change in the location, of such
Office or Agency. If at any time the Issuer shall fail to maintain any such
required Office or Agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of such series and any Coupons appertaining thereto may be presented
and surrendered for payment at the place specified for the purpose with respect
to such Securities as provided in or pursuant to this Indenture, and the Issuer
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
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Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
Bearer Securities shall be made at any Office or Agency in the United States or
by check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; PROVIDED, HOWEVER, if
amounts owing with respect to any Bearer Securities shall be payable in Dollars,
payment of principal of, any premium or interest on and any Additional Amounts
with respect to any such Security may be made at the Corporate Trust Office of
the Trustee or any Office or Agency designated by the Issuer in the Borough of
Manhattan, The City of New York, if (but only if) payment of the full amount of
such principal, premium, interest or Additional Amounts at all offices outside
the United States maintained for such purpose by the Issuer in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Issuer may also from time to time designate one or more other
Offices or Agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Issuer of its obligation to maintain an Office
or Agency in each Place of Payment for Securities of any series for such
purposes. The Issuer shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other Office or Agency. Unless otherwise provided in or pursuant to this
Indenture, the Issuer hereby designates as the Place of Payment for each series
of Securities the Borough of Manhattan, The City of New York, and initially
appoints the Corporate Trust Office of the Trustee as the Office or Agency of
the Issuer in the Borough of Manhattan, The City of New York for such purpose.
The Issuer may subsequently appoint a different Office or Agency in the Borough
of Manhattan, The City of New York for the Securities of any series.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of this Indenture, then the Issuer
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
Section 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Issuer shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date of the
principal of, any premium or interest on or Additional Amounts with respect to
any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) sufficient to pay the principal
or any premium, interest or Additional Amounts so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
shall promptly notify the Trustee of its action or failure so to act.
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Whenever the Issuer shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the principal
of, any premium or interest on or any Additional Amounts with respect to any
Securities of such series, deposit with any Paying Agent a sum (in the currency
or currencies, currency unit or units or composite currency or currencies
described in the preceding paragraph) sufficient to pay the principal or any
premium, interest or Additional Amounts so becoming due, such sum to be held in
trust for the benefit of the Persons entitled thereto, and (unless such Paying
Agent is the Trustee) the Issuer will promptly notify the Trustee of its action
or failure so to act.
The Issuer shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of, any
premium or interest on or any Additional Amounts with respect to Securities of
such series in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as provided in or
pursuant to this Indenture;
(2) give the Trustee notice of any default by the Issuer (or any
other obligor upon the Securities of such series) in the making of any payment
of principal, any premium or interest on or any Additional Amounts with respect
to the Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuer or such Paying Agent, such sums to be held by the Trustee
upon the same terms as those upon which such sums were held by the Issuer or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Except as otherwise provided herein or pursuant hereto, any money
deposited with the Trustee or any Paying Agent, or then held by the Issuer, in
trust for the payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any Security of any series or any Coupon
appertaining thereto and remaining unclaimed for two years after such principal
or any such premium or interest or any such Additional Amounts shall have become
due and payable shall be paid to the Issuer on Issuer Request, or (if then held
by the Issuer) shall be discharged from such trust; and the Holder of such
Security or any Coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Issuer for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Issuer 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
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expense of the Issuer cause to be published once, in an Authorized Newspaper
in each Place of Payment for such series or to be mailed to Holders of
Registered Securities of such series, or both, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication or mailing nor shall it be
later than two years after such principal and any premium or interest or
Additional Amounts shall have become due and payable, any unclaimed balance
of such money then remaining will be repaid to the Issuer.
Section 1004. ADDITIONAL AMOUNTS.
If any Securities of a series provide for the payment of Additional
Amounts, the Issuer agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts (if applicable) in any provision hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to such series of Securities (or if the Securities of
such series shall not bear interest prior to Maturity, the first day on which a
payment of principal is made), and at least 10 days prior to each date of
payment of principal or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officers' Certificate, the Issuer
shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if
other than the Trustee, an Officers' Certificate instructing the Trustee and
such Paying Agent or Paying Agents whether such payment of principal of and
premium, if any, or interest on the Securities of such series shall be made to
Holders of Securities of such series or the Coupons appertaining thereto who are
United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of such
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or Coupons, and the Issuer agrees
to pay to the Trustee or such Paying Agent the Additional Amounts required by
the terms of such Securities. The Issuer covenants to indemnify the Trustee and
any Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this Section.
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Section 1005. CORPORATE EXISTENCE.
Subject to Article Eight, the Issuer shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and its rights (charter and statutory) and franchises; PROVIDED,
HOWEVER, that the foregoing shall not obligate the Issuer to preserve any such
right or franchise if the Issuer shall determine that the preservation thereof
is no longer desirable in the conduct of its business and that the loss thereof
is not disadvantageous in any material respect to any Holder.
Section 1006. WAIVER OF CERTAIN COVENANTS.
The Issuer may omit in any particular instance to comply with any
term, provision or condition set forth in Section 1005 with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities of such
series, by Act of such Holders, either shall waive such compliance in such
instance or generally shall have waived compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Issuer and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
Section 1007. ISSUER STATEMENT AS TO COMPLIANCE; NOTICE OF CERTAIN
DEFAULTS.
(1) The Issuer shall deliver to the Trustee, within 120 days after
the end of each fiscal year, a written statement (which need not be contained in
or accompanied by an Officers' Certificate) signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Issuer, stating that
(a) a review of the activities of the Issuer during such year and of
its performance under this Indenture has been made under his or her
supervision, and
(b) to the best of his or her knowledge, based on such review, (a)
the Issuer has complied with all the conditions and covenants imposed on it
under this Indenture throughout such year, or, if there has been a default
in the fulfillment of any such condition or covenant, specifying each such
default known to him or her and the nature and status thereof, and (b) no
event has occurred and is continuing which is, or after notice or lapse of
time or both would become, an Event of Default, or, if such an event has
occurred and is continuing, specifying each such event known to him and the
nature and status thereof.
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(2) The Issuer shall deliver to the Trustee, within five days after
the occurrence thereof, written notice of any Event of Default or any event
which after notice or lapse of time or both would become an Event of Default
pursuant to clause (4) of Section 501.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. APPLICABILITY OF ARTICLE.
Redemption of Securities of any series at the option of the Issuer as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Issuer to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Issuer of (a) less than all of the Securities of any series or (b) all of
the Securities of any series, with the same issue date, interest rate or
formula, Stated Maturity and other terms, the Issuer shall, at least 60 days
prior to the Redemption Date fixed by the Issuer (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed.
Section 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all of the Securities of any series with the same issue
date, interest rate or formula, Stated Maturity and other terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of Registered
Securities of such series; PROVIDED, HOWEVER, that no such partial redemption
shall reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a Security of
such series established herein or pursuant hereto.
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The Trustee shall promptly notify the Issuer and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted or exchanged for other securities in part before termination of the
conversion or exchange right with respect to the portion of the Security so
selected, the converted portion of such Security shall be deemed (so far as may
be) to be the portion selected for redemption. Securities which have been
converted or exchanged during a selection of Securities to be redeemed shall be
treated by the Trustee as Outstanding for the purpose of such selection.
Section 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 nor more than 60 days prior to the Redemption Date, unless
a shorter period is specified in the Securities to be redeemed, to the Holders
of Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such
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Security, the Holder of such Security will receive, without charge, a new
Security or Securities of authorized denominations for the principal amount
thereof remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall become
due and payable upon each such Security or portion thereof to be redeemed, and,
if applicable, that interest thereon shall cease to accrue on and after said
date,
(6) the place or places where such Securities, together (in the case
of Bearer Securities) with all Coupons appertaining thereto, if any, maturing
after the Redemption Date, are to be surrendered for payment of the Redemption
Price and any accrued interest and Additional Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be accompanied
by all Coupons maturing subsequent to the date fixed for redemption or the
amount of any such missing Coupon or Coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Issuer, the
Trustee and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on the Redemption Date pursuant to Section 305 or otherwise, the last date, as
determined by the Issuer, on which such exchanges may be made,
(10) in the case of Securities of any series that are convertible or
exchangeable into other securities, the conversion or exchange price or rate,
the date or dates on which the right to convert or exchange the principal of the
Securities of such series to be redeemed will commence or terminate and the
place or places where such Securities may be surrendered for conversion or
exchange, and
(11) the CUSIP number or the Euroclear or the Cedel reference numbers
of such Securities, if any (or any other numbers used by a Depository to
identify such Securities).
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed, unless the
redemption applies to less than all of the Registered Securities.
Notice of redemption of Securities to be redeemed at the election of
the Issuer shall be given by the Issuer or, at the Issuer's request, by the
Trustee in the name and at the expense of the Issuer.
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Section 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Issuer shall deposit, with
respect to the Securities of any series called for redemption pursuant to
Section 1104, with the Trustee or with a Paying Agent (or, if the Issuer is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the applicable Currency sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date, unless otherwise specified pursuant to Section 301 or in the
Securities of such series) any accrued interest on and Additional Amounts with
respect thereto, all such Securities or portions thereof which are to be
redeemed on that date.
Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Issuer shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the Coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Issuer at the Redemption Price, together with any accrued interest
and Additional Amounts to the Redemption Date; PROVIDED, HOWEVER, that, except
as otherwise provided in or pursuant to this Indenture or the Bearer Securities
of such series, installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only upon
presentation and surrender of Coupons for such interest (at an Office or Agency
located outside the United States except as otherwise provided in Section 1002),
and PROVIDED, FURTHER, that, except as otherwise specified in or pursuant to
this Indenture or the Registered Securities of such series, installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
Regular Record Dates therefor according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Issuer and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing Coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; PROVIDED,
HOWEVER, that any interest or Additional Amounts represented by Coupons shall be
payable only upon presentation and surrender of those Coupons
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at an Office or Agency for such Security located outside of the United States
except as otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Issuer or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Issuer and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Issuer shall execute
and the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Registered Security or Securities of the same
series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Issuer shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depository
or other Depository for such Security in global form as shall be specified in
the Issuer Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of
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Securities of any series as provided for by the terms of Securities of such
series and this Indenture.
Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Issuer may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Issuer), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Issuer
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, PROVIDED that such series of Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly. If as a result of the delivery or credit
of Securities of any series in lieu of cash payments pursuant to this Section
1202, the principal amount of Securities of such series to be redeemed in order
to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such series for redemption, except upon Issuer
Request, and such cash payment shall be held by the Trustee or a Paying Agent
and applied to the next succeeding sinking fund payment, PROVIDED, HOWEVER, that
the Trustee or such Paying Agent shall at the request of the Issuer from time to
time pay over and deliver to the Issuer any cash payment so being held by the
Trustee or such Paying Agent upon delivery by the Issuer to the Trustee of
Securities of that series purchased by the Issuer having an unpaid principal
amount equal to the cash payment requested to be released to the Issuer.
Section 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Issuer shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Issuer shall thereupon be obligated to pay the amount therein specified.
Not less than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Issuer in the
manner
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provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 309, shall
not operate as a payment, redemption or satisfaction of the Indebtedness
represented by such Securities unless and until the Issuer, at its option, shall
deliver or surrender the same to the Trustee with a directive that such
Securities be cancelled. Notwithstanding anything to the contrary contained in
this Section 1301, in connection with any repayment of Securities, the Issuer
may arrange for the purchase of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the close of business on the
repayment date an amount not less than the repayment price payable by the Issuer
on repayment of such Securities, and the obligation of the Issuer to pay the
repayment price of such Securities shall be satisfied and discharged to the
extent such payment is so paid by such purchasers.
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. APPLICABILITY OF ARTICLE.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series or pursuant to
this Indenture or the Securities, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any such
action or distribution as that amount of Dollars that could be obtained for such
amount on such reasonable basis of exchange and as of the record date with
respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably
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proximate to the date of such action, determination of rights or
distribution) as the Issuer may specify in a written notice to the Trustee
or, in the absence of such written notice, as the Trustee may determine.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 1502. CALL, NOTICE AND PLACE OF MEETINGS.
(1) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or, if Securities of such series have been issued in whole or in part as
Bearer Securities, in London or in such place outside the United States as the
Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(2) In case at any time the Issuer (by or pursuant to a Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
notice of or made the first publication of the notice of such meeting within 21
days after receipt of such request (whichever shall be required pursuant to
Section 106) or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Issuer or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or, if Securities of
such series are to be issued as Bearer Securities, in London for such meeting
and may call such meeting for such purposes by giving notice thereof as provided
in clause (1) of this Section.
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Section 1503. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Issuer and its counsel.
Section 1504. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of at least 66-2/3% in
principal amount of the Outstanding Securities of a series, the Persons entitled
to vote 66-2/3% in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes after
the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(1), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of at least 66-2/3% in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of 66-2/3% in principal amount of
the Outstanding Securities of that series; and provided, further, that, except
as limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other Act
which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than
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a majority, in principal amount of the Outstanding Securities of a series may
be adopted at a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding Securities
of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS.
(1) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(2) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Issuer or by Holders of Securities as provided in Section 1502(2), in which
case the Issuer or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Securities of
such series held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
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(4) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Issuer, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
* * * * *
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed,
all as of the day and year first above written.
[SEAL] NATIONAL CONSUMER COOPERATIVE BANK
Attest:
By________________________________
Name:
Title:
[SEAL] THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
Attest:
By_________________________________
Name:
Title:
<PAGE>
STATE OF _________)
: SS.:
COUNTY OF ________)
On the _____ day of_____________, 19__, before me personally came
______________________, to me known, who, being by me duly sworn, did depose and
say that he is a _____________________________ of National Consumer Cooperative
Bank, a financial institution organized under the laws of the United States, one
of the persons described in and who executed the foregoing instrument; that he
knows the seal of National Consumer Cooperative Bank; that the seal affixed to
said instrument is National Consumer Cooperative Bank's seal; that it was so
affixed by authority of the Board of Directors of National Consumer Cooperative
Bank; and that he signed his name thereto by like authority.
____________________________
Notary Public
[NOTARIAL SEAL]
<PAGE>
STATE OF _________)
: SS.:
COUNTY OF ________)
On the _____ day of ______________, 19__, before me personally came
______________________________, to me known, who, being by me duly sworn, did
depose and say that he is a ____________________________ of The First National
Bank of Chicago, a national banking association organized and existing under the
laws of the United States, one of the persons described in and who executed the
foregoing instrument; that he knows the seal of The First National Bank of
Chicago; that the seal affixed to said instrument is The First National Bank of
Chicago's seal; that it was so affixed by authority of the Board of Directors of
The First National Bank of Chicago; and that he signed his name thereto by like
authority.
____________________________
Notary Public
[NOTARIAL SEAL]
<PAGE>
EXHIBIT 4.2
[FORM OF FIXED RATE NOTE]
THIS NOTE IS A DIRECT, UNCONDITIONAL, UNSECURED AND UNSUBORDINATED OBLIGATION
OFNATIONAL CONSUMER COOPERATIVE BANK (THE "ISSUER"), IS NOT GUARANTEED BY THE
UNITED STATES AND DOES NOT CONSTITUTE A DEBT OR OBLIGATION OF THE UNITED
STATES OR ANY AGENCY OR INSTRUMENTALITY THEREOF.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE 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
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN. (1)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. (2)
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. FXR- ___ _______________ _________________
NATIONAL CONSUMER COOPERATIVE BANK
MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY DATE:
INTEREST PAYMENT DATE(S) DEFAULT RATE: %
[ ] _______ and ______
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE
REDUCTION: %
OPTIONAL REPAYMENT [ ] CHECK IF AN ORIGINAL
DATE(S): ISSUE DISCOUNT NOTE
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION: EXCHANGE RATE
[ ] United States dollars [ ] $1,000 and integral AGENT:
[ ] Other: multiples thereof
[ ] Other:
ADDENDUM ATTACHED OTHER/ADDITIONAL PROVISIONS:
[ ] Yes
[ ] No
1 This paragraph applies to global Notes only.
2 This paragraph applies to global Notes only.
<PAGE>
NATIONAL CONSUMER COOPERATIVE BANK, a financial institution duly organized
and existing under the laws of the United States (the "Issuer", which terms
include any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to CEDE & CO., or registered assigns,
the principal sum of _____________________, on the Stated Maturity Date
specified above (or any Redemption Date or Repayment Date, each as defined on
the reverse hereof) (each such Stated Maturity Date, Redemption Date or
Repayment Date being hereinafter referred to as the "Maturity Date" with respect
to the principal repayable on such date) and to pay interest thereon, at the
Interest Rate per annum specified above, until the principal hereof is paid or
duly made available for payment, and (to the extent that the payment of such
interest shall be legally enforceable) at the Default Rate per annum specified
above on any overdue principal, premium and/or interest. The Issuer will pay
interest in arrears on each Interest Payment Date, if any, specified above
(each, an "Interest Payment Date"), commencing with the first Interest Payment
Date next succeeding the Original Issue Date specified above, and on the
Maturity Date; PROVIDED, HOWEVER, that if the Original Issue Date occurs between
a Record Date (as defined below) and the next succeeding Interest Payment Date,
interest payments will commence on the second Interest Payment Date next
succeeding the Original Issue Date to the holder of this Note on the Record Date
with respect to such second Interest Payment Date. Interest on this Note will
be computed on the basis of a 360-day year of twelve 30-day months.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined below) immediately preceding such Interest
Payment Date (the "Record Date"); PROVIDED, HOWEVER, that interest payable on
the Maturity Date will be payable to the person to whom the principal hereof and
premium, if any, hereon shall be payable. Any such interest not so punctually
paid or duly provided for ("Defaulted Interest") will forthwith cease to be
payable to the holder on any Record Date, and shall be paid to the person in
whose name this Note is registered at the close of business on a special record
date (the "Special Record Date") for the payment of such
2
<PAGE>
Defaulted Interest to be fixed by the Trustee hereinafter referred to, notice
whereof shall be given to the holder of this Note by the Trustee not less
than 10 calendar days prior to such Special Record Date or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which this Note may be listed, and upon such notice as
may be required by such exchange, all as more fully provided for in the
Indenture.
Payment of principal, premium, if any, and interest in respect of this Note
due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as contemplated on the
reverse hereof) at the corporate trust office of the Trustee maintained for that
purpose in the Borough of Manhattan, The City of New York, currently located at
14 Wall Street, 8th Floor-Window 2, New York, New York 10005, or at such other
paying agency in the Borough of Manhattan, The City of New York, as the Issuer
may determine; PROVIDED, HOWEVER, that if the Specified Currency specified above
is other than United States dollars and such payment is to be made in the
Specified Currency in accordance with the provisions set forth below, such
payment will be made by wire transfer of immediately available funds to an
account with a bank designated by the holder hereof at least 15 calendar days
prior to the Maturity Date, provided that such bank has appropriate facilities
therefor and that this Note (and, if applicable, a duly completed repayment
election form) is presented and surrendered at the aforementioned office of the
Trustee in time for the Trustee to make such payment in such funds in accordance
with its normal procedures. Payment of interest due on any Interest Payment
Date other than the Maturity Date will be made by check mailed to the address of
the person entitled thereto as such address shall appear in the Security
Register maintained at the aforementioned office of the Trustee; PROVIDED,
HOWEVER, that a holder of U.S.$10,000,000 (or, if the Specified Currency is
other than United States dollars, the equivalent thereof in the Specified
Currency) or more in aggregate principal amount of Notes (whether having
identical or different terms and provisions) will be entitled to receive
interest payments on such Interest Payment Date by wire transfer of immediately
available funds if appropriate wire transfer instructions have been received in
writing by the Trustee not less than 15 calendar days prior to such Interest
Payment Date. Any such wire transfer instructions received by the Trustee shall
remain in effect until revoked by such holder.
If any Interest Payment Date or the Maturity Date falls on a day that is
not a Business Day, the required payment of principal, premium, if any, and/or
interest shall be made on the next succeeding Business Day with the same force
and effect as if made on the date such payment was due, and no interest shall
accrue with respect to such payment for the period from and after such Interest
Payment Date or the Maturity Date, as the case may be, to the date of such
payment on the next succeeding Business Day.
3
<PAGE>
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in The
City of New York; PROVIDED, HOWEVER, that if the Specified Currency is other
than United States dollars and any payment is to be made in the Specified
Currency in accordance with the provisions hereof, such day is also not a day on
which banking institutions are authorized or required by law, regulation or
executive order to close in the Principal Financial Center (as defined below) of
the country issuing the Specified Currency (or, in the case of European Currency
Units ("ECU"), is not a day that appears as an ECU non-settlement day on the
display designated as "ISDE" on the Reuter Monitor Money Rates Service (or a day
so designated by the ECU Banking Association) or, if ECU non-settlement days do
not appear on that page (and are not so designated), is not a day on which
payments in ECU cannot be settled in the international interbank market).
"Principal Financial Center" means the capital city of the country issuing the
Specified Currency, except that with respect to United States dollars,
Australian dollars, Deutsche marks, Dutch guilders, Italian lire, Swiss francs
and ECU, the "Principal Financial Center" shall be The City of New York, Sydney,
Frankfurt, Amsterdam, Milan, Zurich and Luxembourg, respectively.
The Issuer is obligated to make payment of principal, premium, if any, and
interest in respect of this Note in the Specified Currency (or, if the Specified
Currency is not at the time of such payment legal tender for the payment of
public and private debts, in such other coin or currency of the country which
issued the Specified Currency as at the time of such payment is legal tender for
the payment of such debts). If the Specified Currency is other than United
States dollars, except as otherwise provided below, any such amounts so payable
by the Issuer will be converted by the Exchange Rate Agent specified above into
United States dollars for payment to the holder of this Note.
If the Specified Currency is other than United States dollars, the holder
of this Note may elect to receive such amounts in such Specified Currency. If
the holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency, any United States dollar
amount to be received by the holder of this Note will be based on the highest
bid quotation in The City of New York received by the Exchange Rate Agent at
approximately 11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Issuer for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all holders of
Notes scheduled to receive United States dollar payments and at which the
applicable dealer commits to execute a contract. All currency exchange costs
will be
4
<PAGE>
borne by the holder of this Note by deductions from such payments. If three
such bid quotations are not available, payments on this Note will be made in
the Specified Currency.
If the Specified Currency is other than United States dollars, the holder
of this Note may elect to receive all or a specified portion of any payment of
principal, premium, if any, and/or interest in respect of this Note in the
Specified Currency by submitting a written request for such payment to the
Trustee at its corporate trust office in The City of New York on or prior to the
applicable Record Date or at least 15 calendar days prior to the Maturity Date,
as the case may be. Such written request may be mailed or hand delivered or
sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Issuer, the Issuer
will be entitled to satisfy its obligations to the holder of this Note by making
such payment in United States dollars on the basis of the Market Exchange Rate
(as defined below) on the second Business Day prior to such payment date or, if
such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate or as otherwise specified on the face
hereof. The "Market Exchange Rate" for the Specified Currency means the noon
dollar buying rate in The City of New York for cable transfers for the Specified
Currency as certified for customs purposes by (or if not so certified, as
otherwise determined by) the Federal Reserve Bank of New York. Any payment made
under such circumstances in United States dollars will not constitute an Event
of Default (as defined in the Indenture).
If the Specified Currency is a composite currency and the holder of this
Note shall have duly made an election to receive all or a specified portion of
any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Issuer, then the Issuer will be entitled to satisfy its obligations to
the holder of this Note by making such payment in United States dollars. The
amount of each payment in United States dollars shall be computed by the
Exchange Rate Agent on the
5
<PAGE>
basis of the equivalent of the composite currency in United States dollars.
The component currencies of the composite currency for this purpose
(collectively, the "Component Currencies" and each, a "Component Currency")
shall be the currency amounts that were components of the composite currency
as of the last day on which the composite currency was used. The equivalent
of the composite currency in United States dollars shall be calculated by
aggregating the United States dollar equivalents of the Component Currencies.
The United States dollar equivalent of each of the Component Currencies
shall be determined by the Exchange Rate Agent on the basis of the most
recently available Market Exchange Rate for each such Component Currency, or
as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent shall
be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof and, if so specified on the face hereof, in an Addendum
hereto, which further provisions shall have the same force and effect as if set
forth on the face hereof.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Provisions" apply to this Note as specified above, this Note
shall be subject to the terms set forth in such Addendum or such
"Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
6
<PAGE>
IN WITNESS WHEREOF, National Consumer Cooperative Bank has caused this Note
to be duly executed by one of its duly authorized officers.
NATIONAL CONSUMER COOPERATIVE BANK
By
----------------------------------
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of
the series designated therein referred
to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By
-------------------------------
Authorized Signatory
7
<PAGE>
[REVERSE OF NOTE]
NATIONAL CONSUMER COOPERATIVE BANK
MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Issuer issued and to be issued under a Indenture, dated as
of January 15, 1997, as amended, modified or supplemented from time to time
(the "Indenture"), between the Issuer and The First National Bank of Chicago, as
Trustee (the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Issuer, the Trustee and the holders of
the Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Securities
designated as "Medium-Term Notes Due from 9 Months to 30 years from Date of
Issue" (the "Notes"). All terms used but not defined in this Note or in an
Addendum hereto shall have the meanings assigned to such terms in the Indenture
or on the face hereof, as the case may be.
This Note is issuable only in registered form without coupons in minimum
denominations of U.S.$1,000 and integral multiples thereof or the minimum
Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Issuer on any
date on or after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S.$1,000 or the
minimum Authorized Denomination (provided that any remaining principal amount
hereof shall be at least U.S.$1,000 or such minimum Authorized Denomination), at
the Redemption Price (as defined below), together with unpaid interest accrued
thereon to the date fixed for redemption (each, a "Redemption Date"), on notice
given no more than 60 nor less than 30 calendar days prior to the Redemption
Date and in accordance with the provisions of the Indenture. The "Redemption
Price" shall initially be the Initial Redemption Percentage specified on the
face hereof multiplied by the unpaid principal amount of this Note to be
redeemed. The Initial Redemption Percentage shall decline at each anniversary
of the Initial Redemption Date by the Annual Redemption Percentage Reduction, if
any, specified on the face hereof until the Redemption Price is 100% of unpaid
principal amount to be redeemed. In the event of redemption of this Note in
part only, a new Note of like tenor for the unredeemed portion
8
<PAGE>
hereof and otherwise having the same terms as this Note shall be issued in
the name of the holder hereof upon the presentation and surrender hereof.
This Note will be subject to repayment by the Issuer at the option of the
holder hereof on the Optional Repayment Date(s), if any, specified on the face
hereof, in whole or in part in increments of U.S.$1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S.$1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued thereon to the date fixed for repayment
(each, a "Repayment Date"). For this Note to be repaid, this Note must be
received, together with the form hereon entitled "Option to Elect Repayment"
duly completed, by the Trustee at its corporate trust office not more than 60
nor less than 30 calendar days prior to the Repayment Date. Exercise of such
repayment option by the holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the holder hereof upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the face
hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity will be equal to the sum of
(1) the Issue Price specified on the face hereof (increased by any accruals of
the Discount, as defined below) and, in the event of any redemption of this Note
(if applicable), multiplied by the Initial Redemption Percentage (as adjusted by
the Annual Redemption Percentage Reduction, if applicable) and (2) any unpaid
interest on this Note accrued from the Original Issue Date to the Redemption
Date, Repayment Date or date of acceleration of maturity, as the case may be.
The difference between the Issue Price and 100% of the principal amount of this
Note is referred to herein as the "Discount".
For purposes of determining the amount of Discount that has accrued as of
any Redemption Date, Repayment Date or date of acceleration of maturity of this
Note, such Discount will be accrued so as to cause the yield on the Note to be
constant. The constant yield will be calculated using a 30-day month, 360-day
year convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period) and an assumption that
the maturity of this Note will not be accelerated. If the period from the
Original Issue Date to the initial Interest Payment Date (the "Initial Period")
is shorter than the compounding period for this Note, a proportionate amount of
the yield for an entire compounding period will be accrued. If the Initial
Period is longer than the compounding period, then such period will be divided
into a regular compounding period and a short period, with the short period
being treated as provided in the preceding sentence.
9
<PAGE>
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be accelerated in the manner and with
the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the holders of the Securities at any time by the Issuer
and the Trustee with the consent of the holders of not less than a majority of
the aggregate principal amount of all Securities at the time outstanding and
affected thereby. The Indenture also contains provisions permitting the holders
of not less than a majority of the aggregate principal amount of the outstanding
Securities of any series, on behalf of the holders of all such Securities, to
waive compliance by the Issuer with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the holders of not less than a
majority of the aggregate principal amount of the outstanding Securities of any
series, in certain instances, to waive, on behalf of all of the holders of
Securities of such series, certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this Note shall be
conclusive and binding upon such holder and upon all future holders of this Note
and other Notes issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, the transfer of this Note is registrable in the Security
Register of the Issuer upon surrender of this Note for registration of transfer
at the office or agency of the Issuer in any place where the principal hereof
and any premium or interest hereon are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the
Security Registrar duly executed by, the holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
10
<PAGE>
As provided in the Indenture and subject to certain limitations therein and
herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer 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 Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
11
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
Additional abbreviations may also be used though not in the above list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________
| |
|______________________________|______________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
______________________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting and
appointing
____________________________________________________________________ Attorney
to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated:_____________________ _______________________________________
_______________________________________
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face of this Note in every
particular, without alteration or enlargement
or any change whatsoever. The signature(s)
should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and
loan associations and credit unions with
membership in an approved signature guarantee
medallion program), pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1943.
12
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Issuer to
repay this Note (or portion hereof specified below) pursuant to its terms at a
price equal to 100% of the principal amount to be repaid, together with unpaid
interest accrued hereon to the Repayment Date, to the undersigned, at__________
_______________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate trust
office in the Borough of Manhattan, The City of New York, currently located at
______________________________________, not more than 60 nor less than 30
calendar days prior to the Repayment Date, this Note with this "Option to Elect
Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $______________ _________________________________
Notice: The signature(s) on this
Date:_________________________ Option to Elect Repayment must
correspond with the name(s) as
written upon the face of this
Note in every particular, without
alteration or enlargement or any
change whatsoever. The signature(s)
should be guaranteed by an eligible
guarantor institution (banks,
stockbrokers, savings and loan
associations and credit unions with
membership in an approved signature
guarantee medallion program), pursuant
to Rule 17Ad-15 under the Securities
Exchange Act of 1943.
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Exhibit 4.3
[FORM OF FLOATING RATE NOTE]
THIS NOTE IS A DIRECT, UNCONDITIONAL, UNSECURED AND UNSUBORDINATED OBLIGATION OF
NATIONAL CONSUMER COOPERATIVE BANK (THE "ISSUER"), IS NOT GUARANTEED BY THE
UNITED STATES AND DOES NOT CONSITUTE A DEBT OR OBLIGATION OF THE UNITED
STATES OR ANY AGENCY OR INSTRUMENTALITY THEREOF.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE 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
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.(1)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.(2)
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. FLR-
NATIONAL CONSUMER COOPERATIVE BANK
MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate
Page: Page:
[ ] LIBOR Telerate IF Telerate Page 7052:
Page: [ ] Weekly Average
INDEX CURRENCY: [ ] Monthly Average
Designated CMT Maturity
Index:
INDEX MATURITY: INITIAL INTEREST RATE: % INTEREST PAYMENT DATE(S):
- -----------------------
1 This paragraph applies to global Notes only.
2 This paragraph applies to global Notes only.
<PAGE>
SPREAD (PLUS OR SPREAD MULTIPLIER: INITIAL INTEREST RESET
MINUS): DATE:
MINIMUM INTEREST RATE: % MAXIMUM INTEREST RATE: % INTEREST RESET DATE(S):
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE REDUCTION: %
OPTIONAL REPAYMENT CALCULATION AGENT:
DATE(S):
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate Note from to .
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: % from to .
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the period
Fixed Interest Rate: % from to .
[ ] Original Issue Discount Note Applicable Interest Rate Basis:
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION:
[ ] United States dollars [ ] $1,000 and integral multiples
[ ] Other: thereof
[ ] Other:
EXCHANGE RATE AGENT:
DEFAULT RATE: %
ADDENDUM ATTACHED
[ ] Yes
[ ] No
OTHER/ADDITIONAL PROVISIONS:
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NATIONAL CONSUMER COOPERATIVE BANK, a financial institution duly organized
and existing under the laws of the United States (the "Issuer", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to CEDE & CO., or registered assigns,
the principal sum of ___________________, on the Stated Maturity Date specified
above (or any Redemption Date or Repayment Date, each as defined on the reverse
hereof) (each such Stated Maturity Date, Redemption Date or Repayment Date being
hereinafter referred to as the "Maturity Date" with respect to the principal
repayable on such date) and to pay interest thereon, at a rate per annum equal
to the Initial Interest Rate specified above until the Initial Interest Reset
Date specified above and thereafter at a rate determined in accordance with the
provisions specified above and on the reverse hereof or in an Addendum hereto
with respect to one or more Interest Rate Bases specified above until the
principal hereof is paid or duly made available for payment, and (to the extent
that the payment of such interest shall be legally enforceable) at the Default
Rate per annum specified above on any overdue principal, premium and/or
interest. The Issuer will pay interest in arrears on each Interest Payment
Date, if any, specified above (each, an "Interest Payment Date"), commencing
with the first Interest Payment Date next succeeding the Original Issue Date
specified above, and on the Maturity Date; PROVIDED, HOWEVER, that if the
Original Issue Date occurs between a Record Date (as defined below) and the next
succeeding Interest Payment Date, interest payments will commence on the second
Interest Payment Date next succeeding the Original Issue Date to the holder of
this Note on the Record Date with respect to such second Interest Payment Date.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined on the reverse hereof) immediately preceding such
Interest Payment Date (the "Record Date"); PROVIDED, HOWEVER, that interest
payable on the Maturity Date will be payable to the person to whom the principal
hereof and premium, if any, hereon shall be payable. Any such interest not so
punctually paid or duly provided for ("Defaulted Interest") will forthwith cease
to be payable to the holder on any Record Date, and shall be paid to the person
in whose name this Note is registered at the close of business on a special
record date (the "Special Record Date") for the payment of such Defaulted
Interest to be fixed by the Trustee hereinafter referred to, notice whereof
shall be given to the holder of this Note by the Trustee not less than 10
calendar days prior to such Special Record Date or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which this Note may be listed, and upon such notice as
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<PAGE>
may be required by such exchange, all as more fully provided for in the
Indenture.
Payment of principal, premium, if any, and interest in respect of this Note
due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as contemplated on the
reverse hereof) at the corporate trust office of the Trustee maintained for that
purpose in the Borough of Manhattan, The City of New York, currently located at
14 Wall Street, 8th Floor-Window 2, New York, New York 10005, or at such other
paying agency in the Borough of Manhattan, The City of New York, as the Issuer
may determine; PROVIDED, HOWEVER, that if the Specified Currency specified above
is other than United States dollars and such payment is to be made in the
Specified Currency in accordance with the provisions set forth below, such
payment will be made by wire transfer of immediately available funds to an
account with a bank designated by the holder hereof at least 15 calendar days
prior to the Maturity Date, provided that such bank has appropriate facilities
therefor and that this Note (and, if applicable, a duly completed repayment
election form) is presented and surrendered at the aforementioned office of the
Trustee in time for the Trustee to make such payment in such funds in accordance
with its normal procedures. Payment of interest due on any Interest Payment
Date other than the Maturity Date will be made by check mailed to the address of
the person entitled thereto as such address shall appear in the Security
Register maintained at the aforementioned office of the Trustee; PROVIDED,
HOWEVER, that a holder of U.S.$10,000,000 (or, if the Specified Currency is
other than United States dollars, the equivalent thereof in the Specified
Currency) or more in aggregate principal amount of Notes (whether having
identical or different terms and provisions) will be entitled to receive
interest payments on such Interest Payment Date by wire transfer of immediately
available funds if appropriate wire transfer instructions have been received in
writing by the Trustee not less than 15 calendar days prior to such Interest
Payment Date. Any such wire transfer instructions received by the Trustee shall
remain in effect until revoked by such holder.
If any Interest Payment Date other than the Maturity Date would otherwise
be a day that is not a Business Day, such Interest Payment Date shall be
postponed to the next succeeding Business Day, except that if LIBOR is an
applicable Interest Rate Basis and such Business Day falls in the next
succeeding calendar month, such Interest Payment Date shall be the immediately
preceding Business Day. If the Maturity Date falls on a day that is not a
Business Day, the required payment of principal, premium, if any, and interest
shall be made on the next succeeding Business Day with the same force and effect
as if made on the date such payment was due, and no interest shall accrue with
respect to such payment for the period from and after the Maturity Date to the
date of such payment on the next succeeding Business Day.
The Issuer is obligated to make payment of principal, premium, if any, and
interest in respect of this Note in the Specified Currency (or, if the Specified
Currency is not at the time of such
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<PAGE>
payment legal tender for the payment of public and private debts, in such
other coin or currency of the country which issued the Specified Currency as
at the time of such payment is legal tender for the payment of such debts).
If the Specified Currency is other than United States dollars, except as
otherwise provided below, any such amounts so payable by the Issuer will be
converted by the Exchange Rate Agent specified above into United States
dollars for payment to the holder of this Note.
If the Specified Currency is other than United States dollars, the holder
of this Note may elect to receive such amounts in such Specified Currency. If
the holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency, any United States dollar
amount to be received by the holder of this Note will be based on the highest
bid quotation in The City of New York received by the Exchange Rate Agent at
approximately 11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Issuer for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all holders of
Notes scheduled to receive United States dollar payments and at which the
applicable dealer commits to execute a contract. All currency exchange costs
will be borne by the holder of this Note by deductions from such payments. If
three such bid quotations are not available, payments on this Note will be made
in the Specified Currency.
If the Specified Currency is other than United States dollars, the holder
of this Note may elect to receive all or a specified portion of any payment of
principal, premium, if any, and/or interest in respect of this Note in the
Specified Currency by submitting a written request for such payment to the
Trustee at its corporate trust office in The City of New York on or prior to the
applicable Record Date or at least 15 calendar days prior to the Maturity Date,
as the case may be. Such written request may be mailed or hand delivered or
sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Issuer,
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<PAGE>
the Issuer will be entitled to satisfy its obligations to the holder of this
Note by making such payment in United States dollars on the basis of the
Market Exchange Rate (as defined below) on the second Business Day prior to
such payment date or, if such Market Exchange Rate is not then available, on
the basis of the most recently available Market Exchange Rate or as otherwise
specified on the face hereof. The "Market Exchange Rate" for the Specified
Currency means the noon dollar buying rate in The City of New York for cable
transfers for the Specified Currency as certified for customs purposes by (or
if not so certified, as otherwise determined by) the Federal Reserve Bank of
New York. Any payment made under such circumstances in United States dollars
will not constitute an Event of Default (as defined in the Indenture).
If the Specified Currency is a composite currency and the holder of this
Note shall have duly made an election to receive all or a specified portion of
any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Issuer, then the Issuer will be entitled to satisfy its obligations to
the holder of this Note by making such payment in United States dollars. The
amount of each payment in United States dollars shall be computed by the
Exchange Rate Agent on the basis of the equivalent of the composite currency in
United States dollars. The component currencies of the composite currency for
this purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the Component
Currencies. The United States dollar equivalent of each of the Component
Currencies shall be determined by the Exchange Rate Agent on the basis of the
most recently available Market Exchange Rate for each such Component Currency,
or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent shall
be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
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<PAGE>
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof and, if so specified on the face hereof, in an Addendum
hereto, which further provisions shall have the same force and effect as if set
forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the terms set
forth in such Addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, National Consumer Cooperative Bank has caused this Note
to be duly executed by one of its duly authorized officers.
NATIONAL CONSUMER COOPERATIVE BANK
By
--------------------------------
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of
the series designated therein referred
to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By
--------------------------------------
Authorized Signatory
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<PAGE>
[REVERSE OF NOTE]
NATIONAL CONSUMER COOPERATIVE BANK
MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Issuer issued and to be issued under a Indenture, dated as
of January 15, 1997, as amended, modified or supplemented from time to time
(the "Indenture"), between the Issuer and The First National Bank of Chicago, as
Trustee (the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Issuer, the Trustee and the holders of
the Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Securities
designated as "Medium-Term Notes Due from 9 Months to 30 Years from Date of
Issue" (the "Notes"). All terms used but not defined in this Note or in an
Addendum hereto shall have the meanings assigned to such terms in the Indenture
or on the face hereof, as the case may be.
This Note is issuable only in registered form without coupons in minimum
denominations of U.S.$1,000 and integral multiples thereof or the minimum
Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Issuer on any
date on or after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S.$1,000 or the
minimum Authorized Denomination (provided that any remaining principal amount
hereof shall be at least U.S.$1,000 or such minimum Authorized Denomination), at
the Redemption Price (as defined below), together with unpaid interest accrued
thereon to the date fixed for redemption (each, a "Redemption Date"), on notice
given no more than 60 nor less than 30 calendar days prior to the Redemption
Date and in accordance with the provisions of the Indenture. The "Redemption
Price" shall initially be the Initial Redemption Percentage specified on the
face hereof multiplied by the unpaid principal amount of this Note to be
redeemed. The Initial Redemption Percentage shall decline at each anniversary
of the Initial Redemption Date by the Annual Redemption Percentage Reduction, if
any, specified on the face hereof until the Redemption Price is 100% of unpaid
principal amount to be redeemed. In the event of redemption of this Note in
part only, a new Note of like tenor for the unredeemed portion hereof and
otherwise having the same terms as this Note shall be issued in the name of the
holder hereof upon the presentation and surrender hereof.
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This Note will be subject to repayment by the Issuer at the option of the
holder hereof on the Optional Repayment Date(s), if any, specified on the face
hereof, in whole or in part in increments of U.S.$1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S.$1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued thereon to the date fixed for repayment
(each, a "Repayment Date"). For this Note to be repaid, this Note must be
received, together with the form hereon entitled "Option to Elect Repayment"
duly completed, by the Trustee at its corporate trust office not more than 60
nor less than 30 calendar days prior to the Repayment Date. Exercise of such
repayment option by the holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the holder hereof upon the presentation and surrender hereof.
If the Interest Category of this Note is specified on the face hereof as an
Original Issue Discount Note, the amount payable to the holder of this Note in
the event of redemption, repayment or acceleration of maturity of this Note will
be equal to the sum of (1) the Issue Price specified on the face hereof
(increased by any accruals of the Discount, as defined below) and, in the event
of any redemption of this Note (if applicable), multiplied by the Initial
Redemption Percentage (as adjusted by the Annual Redemption Percentage
Reduction, if applicable) and (2) any unpaid interest on this Note accrued from
the Original Issue Date to the Redemption Date, Repayment Date or date of
acceleration of maturity, as the case may be. The difference between the Issue
Price and 100% of the principal amount of this Note is referred to herein as the
"Discount."
For purposes of determining the amount of Discount that has accrued as of
any Redemption Date, Repayment Date or date of acceleration of maturity of this
Note, such Discount will be accrued so as to cause an assumed yield on the Note
to be constant. The assumed constant yield will be calculated using a 30-day
month, 360-day year convention, a compounding period that, except for the
Initial Period (as defined below), corresponds to the shortest period between
Interest Payment Dates (with ratable accruals within a compounding period), a
constant coupon rate equal to the initial interest rate applicable to this Note
and an assumption that the maturity of this Note will not be accelerated. If
the period from the Original Issue Date to the initial Interest Payment Date
(the "Initial Period") is shorter than the compounding period for this Note, a
proportionate amount of the yield for an entire compounding period will be
accrued. If the Initial Period is longer than the compounding period, then such
period will be divided into a regular compounding period and a short period,
with the short period being treated as provided in the preceding sentence.
The interest rate borne by this Note will be determined as follows:
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(i) Unless the Interest Category of this Note is specified on the
face hereof as a "Floating Rate/Fixed Rate Note" or an "Inverse Floating
Rate Note" or as otherwise specified as Other/Additional Provisions on the
face hereof or in an Addendum hereto, this Note shall be designated as a
"Regular Floating Rate Note" and, except as set forth below or specified on
the face hereof or in an Addendum hereto, shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis or Bases (a)
plus or minus the Spread, if any, and/or (b) multiplied by the Spread
Multiplier, if any, in each case as specified on the face hereof.
Commencing on the Initial Interest Reset Date, the rate at which interest
on this Note shall be payable shall be reset as of each Interest Reset Date
specified on the face hereof; PROVIDED, HOWEVER, that the interest rate in
effect for the period, if any, from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate.
(ii) If the Interest Category of this Note is specified on the face
hereof as a "Floating Rate/Fixed Rate Note", then, except as set forth
below or specified on the face hereof or in an Addendum hereto, this Note
shall bear interest at the rate determined by reference to the applicable
Interest Rate Basis or Bases (a) plus or minus the Spread, if any, and/or
(b) multiplied by the Spread Multiplier, if any. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Note shall be
payable shall be reset as of each Interest Reset Date; PROVIDED, HOWEVER,
that (y) the interest rate in effect for the period, if any, from the
Original Issue Date to the Initial Interest Reset Date shall be the Initial
Interest Rate and (z) the interest rate in effect for the period commencing
on the Fixed Rate Commencement Date specified on the face hereof to the
Maturity Date shall be the Fixed Interest Rate specified on the face hereof
or, if no such Fixed Interest Rate is specified, the interest rate in
effect hereon on the day immediately preceding the Fixed Rate Commencement
Date.
(iii) If the Interest Category of this Note is specified on the face
hereof as an "Inverse Floating Rate Note", then, except as set forth below
or specified on the face hereof or in an Addendum hereto, this Note shall
bear interest at the Fixed Interest Rate minus the rate determined by
reference to the applicable Interest Rate Basis or Bases (a) plus or minus
the Spread, if any, and/or (b) multiplied by the Spread Multiplier, if any;
PROVIDED, HOWEVER, that, unless otherwise specified on the face hereof or
in an Addendum hereto, the interest rate hereon shall not be less than
zero. Commencing on the Initial Interest Reset Date, the rate at which
interest on this Note shall be payable shall be reset as of each Interest
Reset Date; PROVIDED, HOWEVER, that the interest rate in effect for the
period, if any, from the Original Issue Date to the Initial Interest Reset
Date shall be the Initial Interest Rate.
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Except as set forth above or specified on the face hereof or in an Addendum
hereto, the interest rate in effect on each day shall be (i) if such day is an
Interest Reset Date, the interest rate determined as of the Interest
Determination Date (as defined below) immediately preceding such Interest Reset
Date or (ii) if such day is not an Interest Reset Date, the interest rate
determined as of the Interest Determination Date immediately preceding the most
recent Interest Reset Date. If any Interest Reset Date would otherwise be a day
that is not a Business Day, such Interest Reset Date shall be postponed to the
next succeeding Business Day, except that if LIBOR is an applicable Interest
Rate Basis and such Business Day falls in the next succeeding calendar month,
such Interest Reset Date shall be the immediately preceding Business Day. In
addition, if the Treasury Rate is an applicable Interest Rate Basis and the
Interest Determination Date would otherwise fall on an Interest Reset Date, then
such Interest Reset Date will be postponed to the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law, regulation or executive order
to close in The City of New York; PROVIDED, HOWEVER, that if the Specified
Currency is other than United States dollars, such day is also not a day on
which banking institutions are authorized or required by law, regulation or
executive order to close in the Principal Financial Center (as defined below)
of the country issuing the Specified Currency (or, in the case of European
Currency Units ("ECU"), is not a day that appears as an ECU non-settlement
day on the display designated as "ISDE" on the Reuter Monitor Money Rates
Service (or a day so designated by the ECU Banking Association) or, if ECU
non-settlement days do not appear on that page (and are not so designated),
is not a day on which payments in ECU cannot be settled in the international
interbank market); PROVIDED, FURTHER, that if LIBOR is an applicable Interest
Rate Basis, such day is also a London Business Day (as defined below).
"London Business Day" means (i) if the Index Currency (as defined below) is
other than ECU, any day on which dealings in such Index Currency are
transacted in the London interbank market or (ii) if the Index Currency is
ECU, any day that does not appear as an ECU non-settlement day on the display
designated as "ISDE" on the Reuter Monitor Money Rates Service (or a day so
designated by the ECU Banking Association) or, if ECU non-settlement days do
not appear on that page (and are not so designated), is not a day on which
payments in ECU cannot be settled in the international interbank market.
"Principal Financial Center" means the capital city of the country issuing
the Specified Currency, or solely with respect to the calculation of LIBOR,
the Index Currency, except that with respect to United States dollars,
Australian dollars, Deutsche marks, Dutch guilders, Italian lire, Swiss
francs and ECU, the "Principal Financial Center" shall be The City of New
York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and Luxembourg,
respectively.
The interest rate applicable to each Interest Reset Period commencing on
the related Interest Reset Date will be determined by the Calculation Agent as
of the applicable Interest Determination Date and will be calculated by the
Calculation Agent on or prior to
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the Calculation Date (as defined below), except with respect to the LIBOR and
the Eleventh District Cost of Funds Rate, which will be calculated as of such
Interest Determination Date. The "Interest Determination Date" with respect
to the CD Rate, the CMT Rate, the Commercial Paper Rate, the Federal Funds
Rate and the Prime Rate will be the second Business Day immediately preceding
the applicable Interest Reset Date; the "Interest Determination Date" with
respect to the Eleventh District Cost of Funds Rate shall be the last working
day of the month immediately preceding the applicable Interest Reset Date on
which the Federal Home Loan Bank of San Francisco (the "FHLB of San
Francisco") publishes the Index (as defined below); and the "Interest
Determination Date" with respect to LIBOR shall be the second London Business
Day immediately preceding the applicable Interest Reset Date, unless the
Index Currency is British pounds sterling, in which case the "Interest
Determination Date" will be the applicable Interest Reset Date. The
"Interest Determination Date" with respect to the Treasury Rate shall be the
day in the week in which the applicable Interest Reset Date falls on which
day Treasury Bills (as defined below) are normally auctioned (Treasury Bills
are normally sold at an auction held on Monday of each week, unless that day
is a legal holiday, in which case the auction is normally held on the
following Tuesday, except that such auction may be held on the preceding
Friday); PROVIDED, HOWEVER, that if an auction is held on the Friday of the
week preceding the applicable Interest Reset Date, the "Interest
Determination Date" shall be such preceding Friday. If the interest rate of
this Note is determined with reference to two or more Interest Rate Bases
specified on the face hereof, the "Interest Determination Date" pertaining to
this Note shall be the most recent Business Day which is at least two
Business Days prior to the applicable Interest Reset Date on which each
Interest Rate Basis is determinable. Each Interest Rate Basis shall be
determined as of such date, and the applicable interest rate shall take
effect on the related Interest Reset Date.
Unless otherwise specified on the face hereof or in an Addendum hereto, the
rate with respect to each Interest Rate Basis will be determined in accordance
with the applicable provisions below.
CD RATE. If an Interest Rate Basis for this Note is specified on the face
hereof as the CD Rate, the CD Rate shall be determined as of the applicable
Interest Determination Date (a "CD Rate Interest Determination Date") as the
rate on such date for negotiable United States dollar certificates of deposit
having the Index Maturity specified on the face hereof as published by the Board
of Governors of the Federal Reserve System in "Statistical Release H.15(519),
Selected Interest Rates" or any successor publication ("H.15(519)") under the
heading "CDs (Secondary Market)". If such rate is not
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<PAGE>
published in H.15(519) by 3:00 P.M., New York City time, on the related
Calculation Date, then the CD Rate on such CD Rate Interest Determination
Date will be calculated by the Calculation Agent specified on the face hereof
and will be the arithmetic mean of the secondary market offered rates as of
10:00 A.M., New York City time, on such CD Rate Interest Determination Date,
of three leading nonbank dealers in negotiable United States dollar
certificates of deposit in The City of New York selected by the Calculation
Agent for negotiable certificates of deposit of major United States money
market banks for negotiable United States dollar certificates of deposit with
a remaining maturity closest to the Index Maturity in an amount that is
representative for a single transaction in that market at that time;
PROVIDED, HOWEVER, that if the dealers so selected by the Calculation Agent
are not quoting as mentioned in this sentence, the CD Rate determined as of
such CD Rate Interest Determination Date will be the CD Rate in effect on
such CD Rate Interest Determination Date.
CMT RATE. If an Interest Rate Basis for this Note is specified on the face
hereof as the CMT Rate, the CMT Rate shall be determined as of the applicable
Interest Determination Date (a "CMT Rate Interest Determination Date") as the
rate displayed on the Designated CMT Telerate Page (as defined below) under the
caption "...Treasury Constant Maturities...Federal Reserve Board Release
H.15...Mondays Approximately 3:45 P.M.", under the column for the Designated CMT
Maturity Index (as defined below) for (i) if the Designated CMT Telerate Page is
7055, the rate on such CMT Rate Interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the weekly or monthly average, as
specified on the face hereof, for the week or month, as applicable, ended
immediately preceding the week or month, as applicable, in which the related CMT
Rate Interest Determination Date occurs. If such rate is no longer displayed on
the relevant page or is not displayed by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in H.15(519). If such rate is no
longer published or is not published by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate on such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in
H.15(519). If such information is not provided by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate on the CMT Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City time, on
such CMT Rate Interest Determination Date reported, according to their written
records, by three leading primary United States government
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<PAGE>
securities dealers (each, a "Reference Dealer") in The City of New York selected
by the Calculation Agent (from five such Reference Dealers selected by the
Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for the most recently issued direct noncallable
fixed rate obligations of the United States ("Treasury Notes") with an original
maturity of approximately the Designated CMT Maturity Index and a remaining term
to maturity of not less than such Designated CMT Maturity Index minus one year.
If the Calculation Agent is unable to obtain three such Treasury Note
quotations, the CMT Rate on such CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based on the
arithmetic mean of the secondary market offer side prices as of approximately
3:30 P.M., New York City time, on such CMT Rate Interest Determination Date of
three Reference Dealers in The City of New York (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation (or,
in the event of equality, one of the lowest)), for Treasury Notes with an
original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least U.S.$100 million. If
three or four (and not five) of such Reference Dealers are quoting as described
above, then the CMT Rate will be based on the arithmetic mean of the offer
prices obtained and neither the highest nor the lowest of such quotes will be
eliminated; provided, however, that if fewer than three Reference Dealers
selected by the Calculation Agent are quoting as mentioned herein, the CMT Rate
determined as of such CMT Rate Interest Determination Date will be the CMT Rate
in effect on such CMT Rate Interest Determination Date. If two Treasury Notes
with an original maturity as described in the second preceding sentence have
remaining terms to maturity equally close to the Designated CMT Maturity Index,
the Calculation Agent will obtain quotations for the Treasury Note with the
shorter remaining term to maturity.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service (or any successor service) on the page specified on the face hereof (or
any other page as may replace such page on such service (or any successor
service) for the purpose of displaying Treasury Constant Maturities as reported
in H.15(519). If no such page is specified on the face hereof, the Designated
CMT Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the United States Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the Designated
CMT Maturity Index shall be 2 years.
COMMERCIAL PAPER RATE. If an Interest Rate Basis for this Note is
specified on the face hereof as the Commercial Paper Rate, the Commercial Paper
Rate shall be determined as of the applicable Interest Determination Date (a
"Commercial Paper Rate Interest
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<PAGE>
Determination Date") as the Money Market Yield (as defined below) on such
date of the rate for commercial paper having the Index Maturity as published
in H.15(519) under the heading "Commercial Paper". If such rate is not
published in H.15(519) by 3:00 P.M., New York City time, on such Calculation
Date, then the Commercial Paper Rate on such Commercial Paper Rate Interest
Determination Date will be calculated by the Calculation Agent and shall be
the Money Market Yield of the arithmetic mean of the offered rates at
approximately 11:00 A.M., New York City time, on such Commercial Paper Rate
Interest Determination Date of three leading dealers of commercial paper in
The City of New York selected by the Calculation Agent for commercial paper
having the Index Maturity placed for an industrial issuer whose bond rating
is "AA", or the equivalent, from a nationally recognized statistical rating
organization; PROVIDED, HOWEVER, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the
Commercial Paper Rate determined as of such Commercial Paper Rate Interest
Determination Date will be the Commercial Paper Rate in effect on such
Commercial Paper Rate Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage) calculated
in accordance with the following formula:
Money Market Yield = D X 360
--------------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the Interest Period for which interest is being calculated.
ELEVENTH DISTRICT COST OF FUNDS RATE. If an Interest Rate Basis for this
Note is specified on the face hereof as the Eleventh District Cost of Funds
Rate, the Eleventh District Cost of Funds Rate shall be determined as of the
applicable Interest Determination Date (an "Eleventh District Cost of Funds Rate
Interest Determination Date") as the rate equal to the monthly weighted average
cost of funds for the calendar month immediately preceding the month in which
such Eleventh District Cost of Funds Rate Interest Determination Date falls, as
set forth under the caption "11th District" on Telerate Page 7058 as of 11:00
A.M., San Francisco time, on such Eleventh District Cost of Funds Rate Interest
Determination Date. If such rate does not appear on Telerate Page 7058 on such
Eleventh District Cost of Funds Rate Interest Determination Date, then the
Eleventh District Cost of Funds Rate on such Eleventh District Cost of Funds
Rate Interest Determination Date shall be the monthly weighted average cost of
funds paid by member institutions of the Eleventh Federal Home Loan
15
<PAGE>
Bank District that was most recently announced (the "Index") by the FHLB of
San Francisco as such cost of funds for the calendar month immediately
preceding such Eleventh District Cost of Funds Rate Interest Determination
Date. If the FHLB of San Francisco fails to announce the Index on or prior
to such Eleventh District Cost of Funds Rate Interest Determination Date for
the calendar month immediately preceding such Eleventh District Cost of Funds
Rate Interest Determination Date, the Eleventh District Cost of Funds Rate
determined as of such Eleventh District Cost of Funds Rate Interest
Determination Date will be the Eleventh District Cost of Funds Rate in effect
on such Eleventh District Cost of Funds Rate Interest Determination Date.
FEDERAL FUNDS RATE. If an Interest Rate Basis for this Note is specified
on the face hereof as the Federal Funds Rate, the Federal Funds Rate shall be
determined as of the applicable Interest Determination Date (a "Federal Funds
Rate Interest Determination Date") as the rate on such date for United States
dollar federal funds as published in H.15(519) under the heading "Federal
Funds (Effective)". If such rate is not published in H.15(519) by 3:00 P.M.,
New York City time, on the related Calculation Date, then the Federal Funds
Rate on such Federal Funds Interest Determination Date shall be calculated by
the Calculation Agent and will be the arithmetic mean of the rates for the
last transaction in overnight United States dollar federal funds arranged by
three leading brokers of federal funds transactions in The City of New York
selected by the Calculation Agent, prior to 9:00 A.M., New York City time, on
such Federal Funds Rate Interest Determination Date; PROVIDED, HOWEVER, that
if the brokers so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Federal Funds Rate determined as of such
Federal Funds Rate Interest Determination Date will be the Federal Funds Rate
in effect on such Federal Funds Rate Interest Determination Date.
LIBOR. If an Interest Rate Basis for this Note is specified on the face
hereof as LIBOR, LIBOR shall be determined by the Calculation Agent as of the
applicable Interest Determination Date (a "LIBOR Interest Determination Date")
in accordance with the following provisions:
(i) if (a) "LIBOR Reuters" is specified on the face hereof, the arithmetic
mean of the offered rates (unless the Designated LIBOR Page (as defined below)
by its terms provides only for a single rate, in which case such single rate
will be used) for deposits in the Index Currency having the Index Maturity,
commencing on the applicable Interest Reset Date, that appear (or, if only a
single rate is required as aforesaid, appears) on the Designated LIBOR Page (as
defined below) as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date, or (b) "LIBOR Telerate" is specified on the face hereof, or
if neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on the face hereof
as the method for calculating LIBOR, the rate for deposits in the
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<PAGE>
Index Currency having the Index Maturity, commencing on such Interest Reset
Date, that appears on the Designated LIBOR Page as of 11:00 A.M., London
time, on such LIBOR Interest Determination Date. If fewer than two such
offered rates appear, or if no such rate appears, as applicable, LIBOR on
such LIBOR Interest Determination Date shall be determined in accordance with
the provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which fewer
than two offered rates appear, or no rate appears, as the case may be, on the
Designated LIBOR Page as specified in clause (i) above, the Calculation Agent
shall request the principal London offices of each of four major reference banks
in the London interbank market, as selected by the Calculation Agent, to provide
the Calculation Agent with its offered quotation for deposits in the Index
Currency for the period of the Index Maturity, commencing on the applicable
Interest Reset Date, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such LIBOR Interest Determination Date
and in a principal amount that is representative for a single transaction in
such Index Currency in such market at such time. If at least two such
quotations are so provided, then LIBOR on such LIBOR Interest Determination Date
will be the arithmetic mean of such quotations. If fewer than two such
quotations are so provided, then LIBOR on such LIBOR Interest Determination Date
will be the arithmetic mean of the rates quoted at approximately 11:00 A.M., in
the applicable Principal Financial Center, on such LIBOR Interest Determination
Date by three major banks in such Principal Financial Center selected by the
Calculation Agent for loans in the Index Currency to leading European banks,
having the Index Maturity and in a principal amount that is representative for a
single transaction in such Index Currency in such market at such time; PROVIDED,
HOWEVER, that if the banks so selected by the Calculation Agent are not quoting
as mentioned in this sentence, LIBOR determined as of such LIBOR Interest
Determination Date shall be LIBOR in effect on such LIBOR Interest Determination
Date.
"Index Currency" means the currency or composite currency specified on the
face hereof as to which LIBOR shall be calculated. If no such currency or
composite currency is specified on the face hereof, the Index Currency shall be
United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on the
face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page specified on the face hereof (or any other page
as may replace such page on such service (or any successor service)), for the
purpose of displaying the London interbank rates of major banks for the Index
Currency, or (b) if "LIBOR Telerate" is specified on the face hereof or neither
"LIBOR Reuters" nor "LIBOR Telerate" is specified on the face hereof as the
method for calculating LIBOR, the display on the Dow Jones Telerate Service (or
any successor service) on the page specified on the face hereof (or any other
page as may replace such page on such service (or any successor service)) for
the purpose of displaying the London interbank rates of major banks for the
Index Currency.
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<PAGE>
PRIME RATE. If an Interest Rate Basis for this Note is specified on the
face hereto as the Prime Rate, the Prime Rate shall be determined as of the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on such date as such rate is published in H.15(519) under
the heading "Bank Prime Loan". If such rate is not published prior to 3:00
P.M., New York City time, on the related Calculation Date, then the Prime
Rate shall be the arithmetic mean of the rates of interest publicly announced
by each bank that appears on the Reuters Screen US Prime 1 Page (as defined
below) as such bank's prime rate or base lending rate as in effect for such
Prime Rate Interest Determination Date. If fewer than four such rates appear
on the Reuters Screen US Prime 1 Page for such Prime Rate Interest
Determination Date, the Prime Rate shall be the arithmetic mean of the prime
rates quoted on the basis of the actual number of days in the year divided by
a 360-day year as of the close of business on such Prime Rate Interest
Determination Date by four major money center banks in The City of New York
selected by the Calculation Agent. If fewer than four such quotations are so
provided, the Prime Rate shall be the arithmetic mean of four prime rates
quoted on the basis of the actual number of days in the year divided by a
360-day year as of the close of business on such Prime Rate Interest
Determination Date as furnished in The City of New York by the major money
center banks, if any, that have provided such quotations and by a reasonable
number of substitute banks or trust companies to obtain four such prime rate
quotations, provided such substitute banks or trust companies are organized
and doing business under the laws of the United States, or any State thereof,
each having total equity capital of at least U.S.$500 million and being
subject to supervision or examination by Federal or State authority, selected
by the Calculation Agent to provide such rate or rates; PROVIDED, HOWEVER,
that if the banks or trust companies so selected by the Calculation Agent are
not quoting as mentioned in this sentence, the Prime Rate determined as of
such Prime Rate Interest Determination Date will be the Prime Rate in effect
on such Prime Rate Interest Determination Date.
"Reuters Screen US Prime 1 Page" means the display designated as page "US
Prime 1" on the Reuter Money Market Rates Service (or any successor service)
(or such other page as may replace the US Prime 1 Page on such service (or
any successor service) for the purpose of displaying prime rates or base
lending rates of major United States banks).
TREASURY RATE. If an Interest Rate Basis for this Note is specified on the
face hereof as the Treasury Rate, the Treasury Rate shall be determined as of
the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate from the auction held on such Treasury Rate
Interest Determination Date (the "Auction") of direct obligations of the United
States ("Treasury Bills") having the Index Maturity, as such rate is published
in H.15(519) under the heading "Treasury bills-auction average (investment)" or,
if not published by 3:00 P.M., New York City time, on the related Calculation
Date, the auction average rate of such Treasury Bills (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) as otherwise announced by the United States Department of the
Treasury. In the event that the
18
<PAGE>
results of the Auction of Treasury Bills having the Index Maturity are not
reported as provided above by 3:00 P.M., New York City time, on such
Calculation Date, or if no such Auction is held, then the Treasury Rate shall
be calculated by the Calculation Agent and shall be a yield to maturity
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City
time, on such Treasury Rate Interest Determination Date, of three leading
primary United States government securities dealers selected by the
Calculation Agent, for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity; PROVIDED, HOWEVER, that if the dealers so
selected by the Calculation Agent are not quoting as mentioned in this
sentence, the Treasury Rate determined as of such Treasury Rate Interest
Determination Date will be the Treasury Rate in effect on such Treasury Rate
Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law of
general application.
The "Calculation Date", if applicable, pertaining to any Interest
Determination Date shall be the earlier of (i) the tenth calendar day after such
Interest Determination Date or, if such day is not a Business Day, the next
succeeding Business Day or (ii) the Business Day immediately preceding the
applicable Interest Payment Date or the Maturity Date, as the case may be. At
the request of the Holder hereof, the Calculation Agent will provide to the
Holder hereof the interest rate hereon then in effect and, if determined, the
interest rate that will become effective as a result of a determination made for
the next succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by multiplying the
principal amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the applicable Interest Period. Unless otherwise specified as the Day Count
Convention on the face hereof, the interest factor for each such date shall be
computed by dividing the interest rate applicable to such day by 360 if the CD
Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the
Federal Funds Rate, LIBOR or the Prime Rate is an applicable Interest Rate Basis
or by the actual number of days in the year if the CMT Rate or the Treasury Rate
is an applicable Interest Rate Basis. Unless otherwise specified as the Day
Count Convention on the face hereof, the interest factor for this Note, if the
interest rate is calculated with reference to two or more Interest Rate Bases,
shall be calculated in each period in the same manner as if only the Applicable
Interest Rate Basis specified on the face hereof applied.
All percentages resulting from any calculation on this Note shall be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point
19
<PAGE>
rounded upwards, and all amounts used in or resulting from such calculation
on this Note shall be rounded, in the case of United States dollars, to the
nearest cent or, in the case of a Specified Currency other than United States
dollars, to the nearest unit (with one-half cent or unit being rounded
upwards).
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be accelerated in the manner and with
the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the holders of the Securities at any time by the Issuer
and the Trustee with the consent of the holders of not less than a majority of
the aggregate principal amount of all Securities at the time outstanding and
affected thereby. The Indenture also contains provisions permitting the holders
of not less than a majority of the aggregate principal amount of the outstanding
Securities of any series, on behalf of the holders of all such Securities, to
waive compliance by the Issuer with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the holders of not less than a
majority of the aggregate principal amount of the outstanding Securities of any
series, in certain instances, to waive, on behalf of all of the holders of
Securities of such series, certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this Note shall be
conclusive and binding upon such holder and upon all future holders of this Note
and other Notes issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, the transfer of this Note is registrable in the Security
Register of the Issuer upon surrender of this Note for registration of transfer
at the office or agency of the Issuer in any place where the principal hereof
and any premium or interest hereon are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the
Security Registrar duly executed by, the holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
20
<PAGE>
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer 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 Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
21
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
Additional abbreviations may also be used though not in the above list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
| |
|______________________________|______________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
______________________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting and
appointing
____________________________________________________________________ Attorney
to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated:_____________________ _______________________________________
_______________________________________
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face of this Note in every
particular, without alteration or enlargement
or any change whatsoever. The signature(s)
should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and
loan associations and credit unions with
membership in an approved signature guarantee
medallion program), pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1943.
22
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Issuer to
repay this Note (or portion hereof specified below) pursuant to its terms at a
price equal to 100% of the principal amount to be repaid, together with unpaid
interest accrued hereon to the Repayment Date, to the undersigned, at_________
______________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate trust
office in the Borough of Manhattan, The City of New York, currently located at
__________________________________________, not more than 60 nor less than 30
calendar days prior to the Repayment Date, this Note with this "Option to Elect
Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $_________________ ______________________________________
Notice: The signature(s) on
Date: ___________________________ this Option to Elect Repayment
must correspond with the name(s) as
written upon the face of this Note in
every particular, without alteration or
enlargement or any change whatsoever.
The signature(s) should be guaranteed by
an eligible guarantor institution
(banks, stockbrokers, savings and loan
associations and credit unions with
membership in an approved signature
guarantee medallion program), pursuant
to Rule 17Ad-15 under the Securities
Exchange Act of 1943.
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<PAGE>
EXHIBIT 5
[LETTERHEAD]
January 21, 1997
National Consumer Cooperative Bank
1401 Eye Street, N.W.
Washington, D.C. 20005
Ladies and Gentlemen:
You have requested our opinion as counsel for National Consumer Cooperative
Bank (the "Company"), in connection with the registration under the Securities
Act of 1933, as amended, and the rules and regulations promulgated thereunder,
and the public offering by the Company of up to $100,000,000 of debt securities
(the "Debt Securities").
We have examined the Company's Registration Statement on Form S-3 in the
form filed with the Securities and Exchange Commission (Reg. No. 333-17003) (the
"Registration Statement"). We further have examined the Charter of the Company
contained at 12 U.S.C. Sections 3001-3051, and the bylaws and the minute books
of the Company, including, without limitation, Resolution No. 96-09 enacted by
the Board of Directors of the Company at a meeting on November 9, 1996, with
respect to the Registration Statement and the Debt Securities (the "Authorizing
Resolutions"). In addition, we have examined such corporate records,
certificates and other documents and such questions of law as we have considered
necessary or appropriate for the purpose of this opinion.
Based upon the foregoing examination we are of the opinion that, when, as
and if (a) the Registration Statement becomes effective pursuant to the
provisions of the Securities Act of 1933, as amended, and subject to compliance
with applicable state securities laws; (b) the Indenture, as defined in the
Registration Statement, has been duly executed and delivered by the parties
thereto; (c) the terms of the Debt Securities have been determined as prescribed
in accordance with the Indenture; and (d) the Debt Securities have been duly
executed by the Company, authenticated by First National Bank of Chicago, as
Trustee, in accordance with the
<PAGE>
National Consumer Cooperative Bank
January 21, 1997
Page 2
terms and conditions of the Indenture, and sold by the Company pursuant to the
Authorizing Resolutions, all in the manner contemplated by the Registration
Statement and the Authorizing Resolutions, the Debt Securities in all respects
will be validly issued and binding obligations of the Company (except as may be
limited by bankruptcy, insolvency, reorganization or other laws relating to the
enforcement of creditors' rights or by general principles of equity).
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the use of our name whenever it appears in the Registration
Statement, any amendment thereto, and prospectus and any supplement thereto.
Respectfully submitted,
SHEA & GARDNER
BY: /s/ Martin J. Flynn
--------------------
Martin J. Flynn
<PAGE>
EXHIBIT 12
<TABLE>
<CAPTION>
NATIONAL CONSUMER COOPERATIVE BANK
--------------------------------------
Computation of Ratio of Earnings to Fixed Changes
For the Nine Months
Year Ending December 31st Ended
------------------------------- -----------------------
1995 1994 1993 1992 1991 9/30/96 9/30/95
---- ---- ---- ---- ---- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings
Net Income 9,083,236 8,876,862 8,615,979 6,059,577 5,863,958 10,138,933 6,036,137
Provision for Income Taxes 777,683 584,530 845,998 662,144 429,678 608,190 623,938
Fixed Charges 31,207,466 21,046,585 21,087,917 24,356,554 27,345,679 25,598,704 22,162,715
Total Earnings 41,068,385 30,507,977 30,549,894 31,078,275 33,639,315 36,345,827 28,822,790
---------- ---------- ---------- ---------- ---------- ---------- ----------
Fixed Changes
Interest Expenses, Debt 27,295,259 18,529,148 18,697,821 21,820,938 24,303,915 22,261,807 19,295,661
Interest Expenses, Deposits 3,457,902 2,079,895 1,965,347 2,096,747 2,515,106 3,030,438 2,521,462
Rentals 454,305 437,542 424,749 438,869 526,658 306,459 345,592
Total Fixed Changes 31,207,466 21,046,585 21,087,917 24,356,554 27,345,679 25,598,704 22,162,715
---------- ---------- ---------- ---------- ---------- ---------- ----------
Fixed Charges w/o Deposits 27,749,564 18,966,690 19,122,570 22,259,807 24,830,573 22,568,266 19,641,253
---------- ---------- ---------- ---------- ---------- ---------- ----------
Ratio of Earnings to Fixed Charges
Including Interest on deposits 1.32 1.45 1.45 1.28 1.23 1.42 1.30
Excluding Interest on deposits 1.38 1.50 1.49 1.30 1.25 1.48 1.34
</TABLE>
<PAGE>
Independent Auditors' Consent
We consent to the incorporation by reference in this Amendment No. 1 to
Registration Statement No. 333-17003 of National Consumer Cooperative Bank
on Form S-3 of our report dated January 30,1996, appearing in the Annual Report
on Form 10-K of National Consumer Cooperative Bank for the year ended
December 31, 1995 and to the reference to us under the heading "Experts" in
the Prospectus, which is part of this Registration Statement.
Washington, D.C.
January 21, 1997
<PAGE>
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)
-----------------------------------
NATIONAL CONSUMER COOPERATIVE BANK
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
UNITED STATES OF AMERICA 52-1157795
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1401 EYE STREET, N. W.
WASHINGTON, D.C. 20005
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2
<PAGE>
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the
United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois, on
the 16th day of January, 1996.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /S/ RICHARD D. MANELLA
RICHARD D. MANELLA
VICE PRESIDENT
* EXHIBITS 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 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA INC. FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 25,
1996 (REGISTRATION NO. 333-14201).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
January 16, 1997
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between National Consumer
Cooperative Bank and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /S/ RICHARD D. MANELLA
RICHARD D. MANELLA
VICE PRESIDENT
4
<PAGE>
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago
Call Date: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN C400 [-
------------ ------
THOUSANDS RCFD BIL MIL THOU
------------------- ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1). . 0081 4,041,784 1.a.
b. Interest-bearing balances(2) . . . . . . . . . . . . . . 0071 5,184,890 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 3,173,481 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold . . . . . . . . . . . . . . . . . . . 0276 3,505,874 3.a.
b. Securities purchased under agreements to resell. . . . . 0277 145,625 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2122 22,835,958 4.a.
b. LESS: Allowance for loan and lease losses. . . . . . . . RCFD 3123 418,851 4.b.
c. LESS: Allocated transfer risk reserve. . . . . . . . . . RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) . . . . . . . . . . 2125 22,417,107 4.d.
5. Assets held in trading accounts . . . . . . . . . . . . . . 3545 8,121,948 5.
6. Premises and fixed assets (including capitalized leases). . 2145 707,971 6.
7. Other real estate owned (from Schedule RC-M). . . . . . . . 2150 9,184 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M). . . . . . . . . . . . . . . 2130 53,803 8.
9. Customers' liability to this bank on acceptances outstanding 2155 626,690 9.
10. Intangible assets (from Schedule RC-M). . . . . . . . . . . 2143 310,246 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . 2160 1,658,123 11.
12. Total assets (sum of items 1 through 11). . . . . . . . . . 2170 49,956,726 12.
</TABLE>
- ---------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE>
Legal Title of Bank: The First National Bank of Chicago
Call Date: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
------------------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1). . . . . . . . . . . . . . . RCON 2200 22,369,341 13.a.
(1) Noninterest-bearing(1) . . . . . . . . . . . . . . . RCON 6631 9,726,987 13.a.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . RCON 6636 12,642,354 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) . . . . . . . . . . . RCFN 2200 10,026,286 13.b.
(1) Noninterest bearing. . . . . . . . . . . . . . . . . RCFN 6631 336,746 13.b.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . RCFN 6636 9,689,540 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased. . . . . . . . . . . . . . . . . RCFD 0278 884,553 14.a.
b. Securities sold under agreements to repurchase . . . . . RCFD 0279 717,211 14.b.
15. a. Demand notes issued to the U.S. Treasury . . . . . . . . RCON 2840 14,120 15.a.
b. Trading Liabilities........................................... RCFD 3548 5,409,585 15b.
16. Other borrowed money:
a. With original maturity of one year or less . . . . . . . RCFD 2332 3,414,577 16.a.
b. With original maturity of more than one year. . . . . . RCFD 2333 46,685 16b.
17. Mortgage indebtedness and obligations under capitalized
leases. . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2910 285,671 17.
18. Bank's liability on acceptance executed and outstanding . . RCFD 2920 626,690 18.
19. Subordinated notes and debentures . . . . . . . . . . . . . RCFD 3200 1,250,000 19.
20. Other liabilities (from Schedule RC-G). . . . . . . . . . . RCFD 2930 1,005,205 20.
21. Total liabilities (sum of items 13 through 20). . . . . . . RCFD 2948 46,049,924 21.
22. Limited-Life preferred stock and related surplus. . . . . . RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus . . . . . . . RCFD 3838 0 23.
24. Common stock. . . . . . . . . . . . . . . . . . . . . . . . RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock). . RCFD 3839 2,925,894 25.
26. a. Undivided profits and capital reserves. . . . . . . . . . RCFD 3632 770,670 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . . . RCFD 8434 10,194 26.b.
27. Cumulative foreign currency translation adjustments . . . . RCFD 3284 (814) 27.
28. Total equity capital (sum of items 23 through 27) . . . . . RCFD 3210 3,906,802 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) . . . . . . . . . . . RCFD 3300 49,956,726 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 Number
--------
auditors as of any date during 1995 . . . . ...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.
