<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 21, 1999
REGISTRATION NO. 333-90457
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 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)
<TABLE>
<S> <C>
UNITED STATES OF AMERICA 52-1157795
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER IDENTIFICATION NO.)
ORGANIZATION)
</TABLE>
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:
<TABLE>
<S> <C>
MARTIN J. 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, NEW YORK 10048
</TABLE>
------------------------
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 the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
PROSPECTUS
NATIONAL CONSUMER COOPERATIVE BANK
(DOING BUSINESS AS NATIONAL COOPERATIVE BANK)
(LOGO)
MAY OFFER
$350,000,000
Debt Securities
Preferred Stock
- --------------------------------------------------------------------------------
NCB will provide the specific terms of these securities in supplements to this
prospectus. You should read this prospectus and the accompanying
prospectus supplement carefully before you invest.
- --------------------------------------------------------------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE NOT GUARANTEED BY THE UNITED STATES AND WILL NOT
CONSTITUTE A DEBT OR OBLIGATION OF THE UNITED STATES OR ANY AGENCY OR
INSTRUMENTALITY THEREOF.
This prospectus is dated December 21, 1999
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SUMMARY............................... 3
NATIONAL CONSUMER COOPERATIVE BANK.... 6
General............................... 6
Loan Requirements, Restrictions and
Policies............................ 6
Lending Limits........................ 7
Interest Rates........................ 7
Competition........................... 10
Taxes................................. 10
Class A Notes......................... 10
Properties............................ 12
Regulation............................ 12
SELECTED CONSOLIDATED FINANCIAL DATA
OF NCB.............................. 13
USE OF PROCEEDS....................... 14
DESCRIPTION OF DEBT
SECURITIES.......................... 14
General............................... 14
Denominations......................... 16
Subordination......................... 16
Consolidation, Merger or Sale......... 18
Modification of Indentures............ 18
Events of Default..................... 18
Covenants............................. 19
Payment and Transfer.................. 19
Global Securities..................... 20
Defeasance............................ 20
</TABLE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
The Trustee........................... 20
DESCRIPTION OF PREFERRED STOCK........ 20
General............................... 21
Rank.................................. 21
Dividends............................. 21
Conversion or Exchange................ 22
Redemption............................ 23
Liquidation Preference................ 23
Voting Rights......................... 24
DESCRIPTION OF CAPITAL STOCK.......... 24
Authorized Capital.................... 24
Outstanding Class B Common Stock...... 24
Outstanding Class C Common Stock...... 25
Outstanding Class D Common Stock...... 25
Voting Rights......................... 25
Trading Market........................ 26
Patronage Refunds..................... 26
PLAN OF DISTRIBUTION.................. 27
By Agents............................. 27
By Underwriters....................... 27
Direct Sales.......................... 28
General Information................... 28
WHERE YOU CAN FIND MORE INFORMATION... 28
LEGAL OPINIONS........................ 29
EXPERTS............................... 29
</TABLE>
2
<PAGE> 4
SUMMARY
This summary provides a brief overview of NCB and the most significant
terms of the offered securities. For a more complete understanding of the terms
of the offered securities, before making your investment decision, you should
carefully read:
- this prospectus, which explains the general terms of the securities that
NCB may offer;
- the accompanying prospectus supplement, which (1) explains the specific
terms of the securities being offered and (2) updates and changes
information in this prospectus; and
- the documents referred to in "Where You Can Find More Information" on page
28 for information on NCB, including its financial statements.
NCB
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. An eligible cooperative
enterprise is an organization which NCB determines 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.
NCB's principal executive offices are located at 1401 Eye Street N.W.,
Suite 700, Washington, DC 20005, and its telephone number is (202) 336-7700.
THE SECURITIES NCB MAY OFFER
NCB may use this prospectus to offer up to $350,000,000 of:
- debt securities; and
- preferred stock.
A prospectus supplement will describe the specific types, amounts, prices, and
detailed terms of any of these offered securities.
DEBT SECURITIES
The debt securities are unsecured general obligations of NCB in the form
of senior or subordinated debt. The senior debt will have the same rank as all
of NCB's other unsecured and unsubordinated debt. The subordinated debt will be
subordinated to all Senior Indebtedness (as defined below under "Description of
Debt Securities -- Subordination").
The senior and subordinated debt will be issued under separate indentures
between NCB and Bank One Trust Company, N.A., as trustee. Below are summaries of
the general features of the debt securities from these indentures. For a more
detailed description of these features, see "Description of Debt Securities"
below. You are also encouraged to read the indentures, which are filed as
exhibits to the registration statement of which this prospectus is a part. You
can receive copies of these documents by following the directions on page 28.
GENERAL INDENTURE PROVISIONS THAT APPLY TO THE DEBT SECURITIES
- Each indenture allows for different types of debt securities to be issued
in series.
- The indentures allow NCB to merge or to consolidate with another company,
or sell all or substantially all of its assets to another company. If any
of these events occur, the other company would be required to assume NCB's
responsibilities for the debt securities. Unless the transaction results
in an event of default, NCB will be released from all liabilities and
obligations under the debt securities when the successor company assumes
NCB's responsibilities.
- The indentures provide that holders of not less than 66 2/3% of the total
principal amount of the senior debt securities and holders of not less
than 66 2/3% of the
3
<PAGE> 5
total principal amount of the subordinated debt securities outstanding in
any series may vote to change NCB's obligations or your rights concerning
those securities. However, some changes to the financial terms of a
security, including changes in the payment of principal or interest on
that security or the currency of payment, cannot be made unless every
holder of that security consents to the change.
- NCB may satisfy its obligations under the debt securities or be released
from its obligation to comply with the limitations discussed above at any
time by depositing sufficient amounts of cash or U.S. or other appropriate
government securities (depending on the currency of payment of the debt
securities) with the trustee to pay NCB's obligations under the particular
debt securities when due.
- The indentures govern the actions of the trustee with regard to the debt
securities, including when the trustee is required to give notices to
holders of the securities and when lost or stolen debt securities may be
replaced.
EVENTS OF DEFAULT THAT APPLY
TO DEBT SECURITIES
The events of default specified in each indenture include:
- failure to pay required interest for 30 days;
- failure to pay principal when due;
- failure to make a required sinking fund payment when due;
- failure to perform other covenants for 60 days after notice;
- failure to make any payment of any amount owing under the Class A Notes
when and as due;
- acceleration of the debt securities of any other series or any
indebtedness for borrowed money of NCB, in each case exceeding $10,000,000
in an aggregate principal amount;
- failure to pay, bond or discharge any uninsured judgment in excess of
$10,000,000 which is not challenged; and
- certain events of insolvency, bankruptcy or reorganization involving NCB,
whether voluntary or not.
See "National Consumer Cooperative Bank -- Class A Notes" on page 10 for a
description of the Class A Notes.
REMEDIES
If there were an event of default, the trustee or holders of 25% of the
principal amount of debt securities outstanding in a series could demand that
the principal be paid immediately. However, holders of a majority in principal
amount of the securities in that series could rescind that acceleration of the
debt securities.
PREFERRED STOCK
NCB may issue preferred stock with various terms to be established by its
board of directors. Each series of preferred stock will be more fully described
in the particular prospectus supplement that will accompany this prospectus,
including redemption provisions, rights in the event of liquidation, dissolution
or winding up of NCB, voting rights, if applicable in connection with any series
of preferred stock, and conversion rights.
Generally, each series of preferred stock will rank on an equal basis with
each other series of preferred stock and will rank prior to NCB's common stock,
including its Class B, Class C, and Class D stock. The prospectus supplement
will also describe how and when dividends will be paid on the series of
preferred stock.
4
<PAGE> 6
As more fully described in this prospectus under "National Consumer
Cooperative Bank -- Class A Notes," without the approval of the Secretary of the
Treasury of the United States, so long as any of NCB's Class A Notes are
outstanding, NCB may not pay a dividend on any class of its stock, including the
preferred stock, at a rate greater than the statutory interest rate payable on
the Class A Notes. Further, without the approval of the Secretary of the
Treasury, NCB may not pay any dividend or distribution on, or make any
repurchase of, any class of stock (including the preferred stock), at any time
when deferred interest payments on the Class A Notes have not been paid in full,
together with any unpaid interest on such notes. Upon any liquidation or
dissolution of NCB, the Class A Notes are entitled to receive out of the assets
of NCB available for distribution to its stockholders, prior to any to holders
of any class of stock (including the preferred stock), an amount not less than
the aggregate face value of all Class A Notes outstanding, plus all accrued and
unpaid interest payments accrued thereon to and including the date of payment
(together with unpaid interest thereon).
Preferred stock issued by NCB will be eligible for the dividends received
deduction to the extent set forth in the prospectus supplement relating to the
preferred stock.
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS
TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table shows the ratio of earnings to fixed charges of NCB for
each of the five most recent fiscal years. The ratio of earnings to fixed
charges is a measure of NCB's ability to generate earnings to pay the fixed
expenses of its debt.
These computations include NCB and its subsidiaries. For purposes of
computing these ratios, earnings consist of pre-tax income from continuing
operations plus fixed charges and amortization of capitalized interest, less
interest capitalized. Fixed charges consist of interest expensed and
capitalized, amortization of debt issuance costs, and NCB's estimate of the
interest component of rental expense. Ratios are presented both including and
excluding interest on deposits.
NCB currently has no preferred stock outstanding and therefore pays no
dividends on preferred stock. Accordingly, the data in the following table also
represents NCB's combined ratio of earnings to fixed charges and preferred stock
dividends.
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, TWELVE MONTHS ENDED DECEMBER 31,
-------------- ------------------------------------
1999 1998 1998 1997 1996 1995 1994
----- ----- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges
Including Interest on Deposits.................. 1.41 1.25 1.31 1.33 1.34 1.32 1.45
Excluding Interest on Deposits.................. 1.46 1.28 1.34 1.36 1.38 1.36 1.50
</TABLE>
5
<PAGE> 7
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, referred to as 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
- to encourage the development of new and existing cooperatives eligible
for its assistance by providing specialized credit and technical
assistance;
- to maintain broad-based control of NCB by its voting shareholders;
- to encourage a broad-based ownership, control and active participation by
members in eligible cooperatives;
- to assist in improving the quality and availability of goods and services
to consumers; and
- 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 and low income 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.
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 NCB determines that 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
6
<PAGE> 8
such goods, services or facilities. In addition, to be eligible to borrow from
NCB, the borrower must, among other things
- be controlled by its members or voting stockholders on a democratic
basis;
- agree not to pay dividends on voting stock or membership capital in
excess of such percentage per annum as may be approved by NCB;
- 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
reduction of its charges to the patrons; and
- 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, and it maintains member finance programs for retailer members of
wholesaler cooperatives in the food and hardware industries. 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
7
<PAGE> 9
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
Principal Transactions 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
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 typically 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.
8
<PAGE> 10
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
- cooperatives whose members are predominantly low-income persons, as
defined by NCB, and
- 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 the date of this prospectus, 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, 1999, approximately 8.8% of
NCB's total assets, excluding real estate loans held for sale, consisted of
loans made for residential purposes.
Operations of Subsidiaries
NCB also provides financing opportunities to cooperatives and undertakes
other programs designed to fulfill its statutory mission through several
subsidiaries.
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 Capital Corporation, formerly named NCB Mortgage Corporation, is a
wholly-owned subsidiary of NCB that originates and services loans to
cooperatives. Where incidental to NCB financing programs for cooperatives, and
to the development of cooperatives, NCB Capital Corporation may make loans to
entities that are not operating on a cooperative basis.
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.
9
<PAGE> 11
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.
Because NCB is a holding company with respect to its subsidiaries, the
claims of creditors of NCB's subsidiaries will have priority over NCB's equity
rights and the rights of NCB's creditors, including the holders of debt
securities, and preferred stockholders to participate in the assets of NCB's
subsidiaries upon the subsidiaries' liquidation.
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.
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.
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, as modified only with respect to NCB by
the NCCBA, 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, dividends nor gains realized in respect of the
securities which may be offered by this prospectus and a related prospectus
supplement is exempt from taxation by the United States or any state, county,
municipality or local taxing authority therein.
CLASS A NOTES
The NCCBA, as initially passed in 1978, provided for Class A preferred
stock of NCB to be held by the United States. In 1981, Congress amended the
NCCBA to convert that Class A preferred stock to Class A Notes of NCB. These
original Class A Notes had a principal amount of $184.27 million and a maturity
date of December 31, 2020.
In 1989, following a passage of a technical amendment to the NCCBA, NCB
entered into a Financing Agreement with the U.S. Treasury that provided for
replacement of the original Class A Notes with four new Class A Notes. This
Financing Agreement is in place as of the date of this prospectus, and it
governs the Class A Notes.
Pursuant to the Financing Agreement, NCB issued to the U.S. Treasury four
Class A Notes. After an initial phase-in period through October 1, 1990, each of
the four Class A Notes provides a
10
<PAGE> 12
different "Maturity Date" -- Note 1 (3 months), Note 2 (36 months), Note 3 (60
months) and Note 4 (120 months). When each Class A Note matures, NCB has the
right to borrow again from the Treasury the maturing amount under the same terms
and conditions until the "Final Maturity Date" of October 31, 2020. NCB intends
generally to avail itself of this right until the Final Maturity Date (except
for planned retirements in the year 2010 of $25 million and in the year 2015 of
another $25 million as part of a repayment plan discussed below). That means
that until the Final Maturity Date, NCB will likely have outstanding to the U.S.
Treasury four traunches of Class A Notes. At each Maturity Date, the interest
rate to be paid upon that Class A 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. Listed below are the
principal amounts and other information about the Class A Notes as of the date
of this prospectus.
<TABLE>
<CAPTION>
CLASS A PRINCIPAL CURRENT
NOTE AMOUNT TERM NEXT MATURITY DATE INTEREST RATE
- ------- ----------- ---------- ------------------ -------------
<S> <C> <C> <C> <C>
1 $53,553,328 3 months 1/1/2000 4.88%
2 $36,854,000 36 months 10/1/2002 5.70%
3 $55,281,000 60 months 10/1/2000 6.01%
4 $36,854,000 120 months 10/1/2000 8.82%
</TABLE>
The Class A Notes and all related payments are subordinated to any secured
and unsecured notes and debentures thereafter issued by NCB, including the
senior debt and subordinated debt securities which may be offered by this
prospectus and any related prospectus supplement. The Class A Notes, however,
have first preference with respect to NCB's assets over all classes of stock
issued by NCB, including the preferred stock which may be offered by this
prospectus and any related prospectus supplement.
The NCCBA provides that NCB may not pay any dividend on any class of stock,
including the preferred stock which may be offered by this prospectus and any
prospectus supplement, at a rate greater than the statutory interest rate
payable on the Class A Notes. Although there has been no court or agency
interpretation of that limitation, NCB has consistently interpreted that
limitation to be the weighted average of the then-current interest rates
applicable to the four outstanding Class A Notes (with the weighting based on
outstanding principal amount). As of the date of this prospectus, the statutory
interest rate payable on the Class A Notes (based on the weighted average) was
an annual rate of 6.18%. NCB is currently seeking an amendment to the NCCBA that
would eliminate this limitation on dividends. There is, of course, no assurance
that the NCCBA will be amended.
In February 1993 and November 1994, NCB adopted plans to maintain a
schedule to ensure accumulation of the funds needed to repay the Class A Notes
on the Final Maturity Date, October 31, 2020. These plans involve the creation
of a reserve fund and the issuance of subordinated debt and preferred stock. If
the subordinated debt or preferred stock being offered by this prospectus is
being offered for the express purpose of funding the reserve fund, we will state
that fact in a prospectus supplement. The plans currently contemplate that
contributions to the reserve fund will total approximately $100 million
($1,000,000 per year for the first 10 years beginning 1994, $2,000,000 in each
of years 11-15, $2,500,000 in each of years 16-20 and $3,000,000 in each of
years 21-26). NCB expects that most of the contributions to the reserve fund
will be funded by borrowings under then-existing NCB credit facilities. The
plans currently contemplate that the remaining $80 million needed to pay off the
Class A Notes will be obtained through the issuance of subordinated debt and
preferred stock. The reserve fund, which was in the amount of $6,950,000 at
September 30, 1999, is maintained as a separate account but will be subject to
claims of senior and subordinated creditors other than the U.S. Treasury in
respect of the Class A Notes, in light of the subordinated status of the Class A
Notes. The plans contemplate the probable retirement of $25 million of Class A
Notes in 2010 and an additional $25 million of Class A Notes in 2015.
11
<PAGE> 13
Under the NCCBA, any interest payment on the Class A Notes may be deferred
by the Board of Directors of NCB with the approval of the Secretary of the
Treasury of the United States, except that any interest payment so deferred is
required to bear interest at a prescribed rate. Without the approval of the
Secretary of the Treasury, NCB may not pay any dividend or distribution on, or
make any repurchase of, any class of stock (including the preferred stock which
may be offered by this prospectus and any related prospectus supplement), at any
time when deferred interest payments on the Class A Notes have not been paid in
full, together with any unpaid interest on such notes. Upon any liquidation or
dissolution of NCB, the Class A Notes are entitled to receive out of the assets
of the NCB available for distribution to its stockholders, prior to any to
holders of any class of stock (including the preferred stock which may be
offered by this prospectus or any related prospectus supplement), an amount not
less than the aggregate face value of all Class A Notes outstanding, plus all
accrued and unpaid interest payments accrued thereon to and including the date
of payment (together with unpaid interest thereon).
PROPERTIES
NCB leases space for its Washington, D.C. headquarters and for three
regional offices located in Oakland, 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, 1998 was
$1,318,000 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 but that agency has no regulatory or
enforcement powers over NCB, 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. As
a savings and loan holding company, NCB is subject to limited regulatory and
enforcement powers of and examination by the Office of Thrift Supervision
pursuant to 12 U.S.C. Section 1467a.
12
<PAGE> 14
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, 1998 and the
nine-month periods ended September 30, 1999 and 1998. The financial data for
each of the years ended December 31, 1994 through 1998 have been derived from
audited financial statements. The financial data for the nine months ended
September 30, 1999 and 1998 have been derived from unaudited financial
statements and reflect, in the opinion of management, all adjustments
(consisting of 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, 1994 through
1998 and NCB's Quarterly Report on Form 10-Q for the quarters ended September
30, 1998 and 1999. See "Where You Can Find More Information."
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
--------------------- ------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
---------- -------- -------- -------- -------- --------- ---------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Total interest income...................... $ 58,827 $ 53,626 $ 71,187 $ 68,787 $ 61,265 $ 52,498 $ 41,123
Net interest income........................ 22,678 19,523 25,627 26,843 25,966 21,745 20,514
Net income................................. 13,816 7,644 12,628 12,462 11,199 9,083 8,877
BALANCE SHEET DATA
(at period end)
Loans and leases outstanding............... $1,016,041 $758,172 $795,174 $773,768 $750,094 $ 597,190 $ 501,090
Total assets............................... 1,128,436 898,436 933,415 869,304 839,336 684,532 567,321
Total capital*............................. 331,251 319,265 322,838 314,376 307,714 300,995 295,749
Subordinated Class A Notes**............... 182,542 182,542 182,542 182,542 182,542 182,542 182,542
Long-term borrowings, including
Subordinated Class A Notes............... 438,873 374,177 413,735 387,335 384,679 337,230 287,899
Members' equity............................ 148,709 136,833 140,296 131,833 125,172 118,453 113,207
Other borrowed funds including deposits.... 765,324 544,621 575,265 531,740 515,257 365,288 256,315
OTHER DATA
Capital to assets**........................ 29.4% 35.5% 34.6% 36.2% 36.7% 44.0% 52.3%
Return on average assets................... 1.3% 0.8% 1.4% 1.5% 1.5% 1.5% 1.7%
Return on average members' equity.......... 9.5% 5.6% 9.3% 9.7% 9.2% 7.8% 7.9%
Net yield on interest earning assets....... 3.1% 2.7% 2.9% 3.3% 3.7% 3.7% 4.1%
Average members' equity as a percent of
average total assets..................... 14.1% 14.9% 14.8% 15.3% 16.5% 18.9% 21.5%
Average members' equity as a percent of
total loans and lease financing.......... 16.2% 17.5% 17.5% 17.9% 19.2% 21.9% 25.0%
Net average loans and lease financing to
average total assets..................... 85.0% 83.3% 84.9% 85.5% 84.3% 86.2% 83.4%
Net average earning assets to average total
assets................................... 93.6% 94.7% 96.0% 95.9% 92.4% 94.9% 93.3%
Allowance for loan losses to loans
outstanding.............................. 1.8% 2.3% 2.2% 2.3% 2.1% 2.5% 2.6%
Provision for loan losses to average loans
outstanding.............................. 0.1% 0.1% 0.1% 0.5% 0.3% 0.4% 0.2%
</TABLE>
- ---------------
* Capital includes members' equity and subordinated Class A Notes.
** Net of deferred hedge gains.
13
<PAGE> 15
USE OF PROCEEDS
Unless otherwise specified in the applicable prospectus supplement, the
proceeds from issuances of debt securities and preferred stock will be used for
general corporate purposes of NCB.
DESCRIPTION OF DEBT SECURITIES
The debt securities will be direct unsecured general obligations of NCB and
will be either senior or subordinated debt. The debt securities will be issued
under separate indentures between NCB and Bank One Trust Company, N.A. Senior
debt securities will be issued under a senior debt indenture and subordinated
debt securities will be issued under a subordinated debt indenture. The senior
indenture and the subordinated indenture are sometimes referred to in this
prospectus individually as an "indenture" and collectively as the "indentures."
The forms of the indentures have been filed with the SEC as exhibits to the
registration statement of which this prospectus forms a part.
The following briefly summarizes the material provisions of the indentures
and the debt securities, other than pricing and related terms disclosed in the
accompanying prospectus supplement. The summary is not complete. You should read
the more detailed provisions of the applicable indenture for provisions that may
be important to you. So that you can easily locate these provisions, the numbers
in parenthesis below refer to sections in the applicable indenture or, if no
indenture is specified, to sections in each of the indentures. Whenever
particular sections or defined terms of the applicable indenture are referred
to, such sections or defined terms are incorporated into this prospectus by
reference, and the statement in this prospectus is qualified by that reference.
GENERAL
The senior debt securities will be unsecured and rank equally with all of
NCB's other senior and unsubordinated debt. The subordinated debt securities
will be unsecured and will be subordinated to all of NCB's Senior Indebtedness
(as defined below under "-- Subordination"). As of September 30, 1999, NCB had
approximately $797 million of Senior Indebtedness outstanding.
Pursuant to the NCCBA, the amount of bonds, debentures, notes, and other
evidences of indebtedness of NCB that may be outstanding at any one time may not
exceed ten times the paid-in capital and surplus of NCB. Pursuant to the NCCBA,
for purposes of this limitation, Class A Notes are deemed to be paid-in capital
of NCB.
THE DEBT SECURITIES ARE NOT GUARANTEED BY THE UNITED STATES AND WILL NOT
CONSTITUTE A DEBT OR OBLIGATION OF THE UNITED STATES OR ANY AGENCY OR
INSTRUMENTALITY THEREOF.
A prospectus supplement relating to any series of debt securities being
offered will include specific terms relating to the offering. These terms will
include some or all of the following:
- the title of the debt securities, whether the debt securities will be
senior or subordinated debt and the series in which the debt securities
will be included;
- any limit on the aggregate principal amount of the debt securities;
- the price or prices (expressed as a percentage of their aggregate
principal amount) at which the debt securities will be issued;
- the date or dates, or the method or methods, if any, by which the date or
dates shall be determined, on which the debt securities will mature and,
if other than the principal amount of the debt securities, the portion of
the principal amount of the debt securities payable at maturity;
14
<PAGE> 16
- the rate or rates (which may be fixed or variable) at which the debt
securities will bear interest, if any, or the method or methods, if any,
by which the 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;
- the date or dates from which interest, if any, on the debt securities
will accrue or the method or methods, if any, by which the date or dates
are to be determined, the date or dates on which the interest, if any,
will be payable, the date on which payment of interest, if any, will
commence and the regular record dates for interest payment dates, if any;
- 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 the
sinking and/or purchase fund;
- 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 of the debt securities of
a series and the other terms and provisions of any optional redemption;
- 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 the global debt security, or the manner in which any
interest payable on a temporary or permanent global debt security will be
paid;
- the denomination or denominations in which the 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 of the debt
securities;
- whether such debt securities will be issued in registered or bearer form
or both and, if in bearer form, the terms and conditions relating to
those bearer debt securities and any limitations on issuance of the
bearer debt securities (including exchange for registered debt securities
of the same series);
- information with respect to book-entry procedures relating to global debt
securities;
- the terms, if any, upon which debt securities may be convertible into
other securities of NCB and the terms and conditions upon which
conversion may be effected, including the initial conversion price or
rate and any other provision in addition to or in lieu of those described
in this prospectus;
- whether any of the debt securities will be issued as original issue
discount securities;
- 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 the debt securities may be presented for
registration of transfer or exchange;
- the currencies or currency units in which the 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 the debt securities will be
payable;
- whether the amount of payments of principal of, and interest on, and
additional amounts, if any, in respect of the 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 or currency units, commodities, equity indices or
other indices) and the manner in which such amounts shall be determined;
15
<PAGE> 17
- 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, the debt
securities in a currency, currencies or currency unit or units other than
that in which the 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 or
currency unit or units in which the debt securities are denominated or
stated to be payable and the currency, currencies or currency unit or
units in which the debt securities are to be paid;
- if other than the trustee, the identity of each security registrar,
paying agent and authenticating agent;
- the applicability of defeasance provisions to the debt securities;
- 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 the
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 coupons 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 manner provided in the
indenture;
- 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 the
debt securities to any holder who is a United States Alien (as defined in
the indenture) (including any modification to that definition 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 those debt securities rather than pay the additional
amounts (and the terms of that option);
- any deletions from, modifications of or additions to the events of
default or covenants of NCB with respect to any of the debt securities;
- any special federal income tax considerations applicable to the debt
securities; and
- any other terms of the debt securities (which will not be inconsistent
with the provisions of the indenture).
The indentures do not limit the amount of debt securities that may be
issued. Each indenture allows debt securities to be issued up to the principal
amount that may be authorized by NCB and may be in any currency or currency unit
designated by NCB. (Sections 301 and 303)
DENOMINATIONS
Unless otherwise provided in the accompanying prospectus supplement,
registered debt securities will be issued in denominations of $1,000 each and
any multiples thereof and bearer debt securities will be issued in denominations
of $5,000 each and any multiple thereof. (Section 302)
SUBORDINATION
Under the subordinated indenture, payment of the principal, interest and
any premium on the subordinated debt securities will generally be subordinated
and junior in right of payment to the prior payment in full of all Senior
Indebtedness (as defined below). The subordinated indenture provides that no
payment of principal, interest or any premium on the subordinated debt
securities may be made unless NCB pays in full the principal, interest, any
premium or any other amounts on any
16
<PAGE> 18
Senior Indebtedness then due. Also, no payment of principal, interest or any
premium on the subordinated debt securities may be made if there shall have
occurred and be continuing an event of default with respect to any Senior
Indebtedness permitting the holders thereof to accelerate the maturity thereof,
or if any judicial proceeding shall be pending with respect to any such default.
If there is any insolvency, bankruptcy, liquidation or other similar
proceeding relating to NCB, then all Senior Indebtedness must be paid in full
before any payment may be made to any holders of subordinated debt securities.
Holders of subordinated debt securities must deliver any payments received by
them to the holders of Senior Indebtedness until all Senior Indebtedness is paid
in full. (Subordinated indenture, Section 1602)
The subordinated indenture will not limit the amount of Senior Indebtedness
that NCB may incur.
"Senior Indebtedness" means any of the following, whether incurred before
or after the execution of the subordinated indenture:
(1) all obligations of NCB for the repayment of borrowed money,
(2) all obligations of NCB for the deferred purchase price of property, but
excluding trade accounts payable in the ordinary course of business,
(3) all capital lease obligations of NCB, and
(4) all obligations of the type referred to in clauses (1) through (3) of
other persons that NCB has guaranteed or that are otherwise its legal
liability;
but Senior Indebtedness does not include:
(a) the subordinated debt securities; and
(b) indebtedness that by its terms is subordinated to, or ranks on an
equal basis with, the subordinated debt securities.
As of the date of this prospectus, NCB does not have outstanding any debt
that ranks equal to the subordinated debt securities and the Class A Notes
constitute the only indebtedness of NCB that by its terms is subordinated with
the subordinated debt securities.
Certain Limitations in Respect of Subordinated Debt Securities
Maturity Dates. The terms of a number of loan agreements to which NCB is a
party restrict NCB from issuing subordinated debt securities with maturity dates
earlier than 91 days after the latest maturity of any of the notes issued under
those agreements or from issuing subordinated debt securities with mandatory
sinking fund or similar provisions for the prepayment thereof prior to that
date. As a result of those provisions, at the date of this prospectus, NCB would
be restricted from issuing subordinated debt securities having a maturity date
or mandatory sinking fund payment date prior to May 5, 2004.
Voluntary Repayment. The loan agreements similarly prohibit NCB from
purchasing, redeeming or otherwise retiring subordinated debt securities prior
to the maturity date of such subordinated debt securities except
- out of proceeds of a substantially concurrent issue or sale of capital
stock or debt ranking equal or junior to the subordinated debt to be
repurchased, redeemed or otherwise retired, or
- out of funds that are at the time available for "restricted payments"
under those agreements.
The term "restricted payments" means all declarations and payments of
dividends, purchases, redemptions or retirements of stock, warrants, rights or
options and such other distributions, together with voluntary repayments in
respect of subordinated debt, which are subject to the restrictions set forth in
the loan agreements.
17
<PAGE> 19
The loan agreements permit restricted payments, if those restricted
payments, together with all patronage refunds payable in cash and all cash
dividends on Class B Stock and Class C Stock, declared or made during the period
from and after December 31, 1991 to and including the date of the declaration or
making of the restricted payment do not exceed the sum of
(A) $15,000,000; and
(B) 50% of consolidated adjusted net income (within the meaning of those
agreements) (or minus 100% of consolidated adjusted net income in the
case of a deficit) for the period commencing on January 1, 1992 and
ending on the last day of NCB's fiscal year most recently ended on such
date, all computed on a cumulative basis for that entire period.
CONSOLIDATION, MERGER OR SALE
Each indenture generally permits a consolidation or merger between NCB and
another corporation. They also permit NCB to sell all or substantially all of
its property and assets. If this happens, the remaining or acquiring corporation
shall assume all of NCB's responsibilities and liabilities under the indentures
including the payment of all amounts due on the debt securities and performance
of the covenants in the indentures.
However, NCB will only consolidate or merge with or into any other
corporation or sell all or substantially all of its assets according to the
terms and conditions of the indentures. The remaining or acquiring corporation
will be substituted for NCB in the indentures with the same effect as if it had
been an original party to the indenture. Thereafter, the successor corporation
may exercise NCB's rights and powers under any indenture, in NCB's name or in
its own name. Any act or proceeding required or permitted to be done by NCB's
board of directors or any of its officers may be done by the board or officers
of the successor corporation. If NCB merges with or into any other corporation
or sells all or substantially all of its assets, it shall be released from all
liabilities and obligations under the indentures and under the debt securities.
(Sections 801 and 802)
MODIFICATION OF INDENTURES
Under each indenture, NCB's rights and obligations and the rights of the
holders may be modified with the consent of the holders of 66 2/3% of the
aggregate principal amount of the outstanding Debt Securities of each series
affected by the modification. No modification of the principal or interest
payment terms, and no modification reducing the percentage required for
modifications, is effective against any holder without its consent. (Sections
901 and 902)
EVENTS OF DEFAULT
Each indenture provides that an "event of default" regarding any series of
debt securities will be any of the following:
- failure to pay interest or additional amounts on any debt security of
such series for 30 days;
- failure to pay the principal or any premium on any debt security of such
series when due;
- failure to deposit any sinking fund payment when due by the terms of a
debt security of such series;
- failure to perform any other covenant in the indenture that continues for
60 days after being given written notice;
- failure to make any payment of any amount owing under any of the Class A
Notes when and as due;
18
<PAGE> 20
- acceleration of the debt securities of any other series or any other
indebtedness for borrowed money of NCB exceeding $10,000,000 in an
aggregate principal amount and such acceleration shall not have been
rescinded or annulled or such indebtedness shall not have been discharged
within a period of 30 days after being given written notice;
- failure to pay, bond or discharge any uninsured judgment in excess of
$10,000,000 within 60 days which is not stayed, appealed or otherwise
challenged in good faith;
- certain events involving bankruptcy, insolvency or reorganization of NCB;
or
- any other event of default included in any indenture or supplemental
indenture. (Section 501)
An event of default for a particular series of debt securities does not
necessarily constitute an event of default for any other series of debt
securities issued under an indenture. The trustee may withhold notice to the
holders of debt securities of any default (except in the payment of principal,
interest, additional amounts or a sinking fund installment) if it considers such
withholding of notice to be in the best interests of the holders. (Section 602)
If an event of default for any series of debt securities occurs and
continues, the trustee or the holders of at least 25% in aggregate principal
amount of the debt securities of the series may declare the entire principal of
all the debt securities of that series to be due and payable immediately. If
this happens, subject to certain conditions, the holders of a majority of the
aggregate principal amount of the debt securities of that series can void the
declaration. (Section 502)
Other than its duties in case of a default, a trustee is not obligated to
exercise any of its rights or powers under any indenture at the request, order
or direction of any holders, unless the holders offer the trustee reasonable
indemnity. (Section 601) If they provide this reasonable indemnification, the
holders of a majority in principal amount of any series of debt securities may
direct the time, method and place of conducting any proceeding or any remedy
available to the trustee, or exercising any power conferred upon the trustee,
for any series of debt securities. (Section 512)
COVENANTS
Under the indentures, NCB will agree to:
- pay the principal, interest, any premium and any additional amounts on
the debt securities when due;
- maintain a place of payment;
- deliver a report to the trustee within 120 days after the end of each
fiscal year certifying as to the absence of events of default and to
NCB's compliance with the terms of the indentures; and
- deposit sufficient funds with any paying agent on or before the due date
for any principal, interest, any premium or any additional amounts.
PAYMENT AND TRANSFER
Principal, interest and any premium on fully registered securities will be
paid at designated places. Payment will be made by check mailed to the persons
in whose names the debt securities are registered on days specified in the
indentures or any prospectus supplement. Debt securities payments in other forms
will be paid at a place designated by NCB and specified in a prospectus
supplement. (Section 307)
Fully registered securities may be transferred or exchanged at the
corporate trust office of the Trustee or at any other office or agency
maintained by NCB for such purposes, without the payment of any service charge
except for any tax or governmental charge. (Section 305)
19
<PAGE> 21
GLOBAL SECURITIES
The debt securities of a series may be issued in whole or in part in the
form of one or more global certificates that will be deposited with a depositary
identified in a prospectus supplement. Unless it is exchanged in whole or in
part for debt securities in definitive form, a global certificate may generally
be transferred only as a whole unless it is being transferred to certain
nominees of the depositary. (Section 203)
Unless otherwise stated in any prospectus supplement, The Depository Trust
Company, New York, New York ("DTC") will act as depositary. Beneficial interests
in global certificates will be shown on, and transfers of global certificates
will be effected only through records maintained by DTC and its participants.
DEFEASANCE
NCB will be discharged from its obligations on the debt securities of any
series at any time if it deposits with the trustee sufficient cash or government
securities to pay the principal, interest, any premium and any other sums due to
the stated maturity date or a redemption date of the debt securities of the
series and any sinking fund payments applicable to the debt securities of that
series. NCB must also deliver to the trustee an opinion of counsel to the effect
that the holders of the debt securities of that series will have no federal
income tax consequences as a result of such deposit. If this happens, the
holders of the debt securities of the series will not be entitled to the
benefits of the applicable debt indenture except for the right to receive
additional amounts (if not already deposited with the trustee) and except for
registration of transfer and exchange of debt securities and replacement of
lost, stolen or mutilated debt securities. (Section 402)
THE TRUSTEE
Bank One Trust Company, N.A. will be the trustee under the indentures. The
trustee and its affiliates may have other relations with NCB in the ordinary
course of business.
The occurrence of any default under the senior indenture and the
subordinated indenture could create a conflicting interest for the trustee under
the Trust Indenture Act. If such default has not been cured or waived within 90
days after the trustee has or acquired a conflicting interest, the trustee would
generally be required by the Trust Indenture Act to eliminate such conflicting
interest or resign as trustee with respect to the debt securities issued under
the senior indenture or with respect to the subordinated debt securities issued
under the subordinated indenture. In the event of the trustee's resignation, NCB
shall promptly appoint a successor trustee with respect to the affected
securities.
The Trust Indenture Act also imposes certain limitations on the right of
the trustee, as a creditor of NCB, to obtain payment of claims in certain cases,
or to realize on certain property received in respect to any such claim or
otherwise. The trustee will be permitted to engage in other transactions with
NCB, provided that if it acquires a conflicting interest within the meaning of
Section 310 of the Trust Indenture Act, it must generally either eliminate such
conflict or resign.
DESCRIPTION OF PREFERRED STOCK
The following briefly summarizes the material terms of NCB's preferred
stock, other than pricing and related terms, which will be disclosed in a
prospectus supplement together with any changes in any applicable law relating
to the preferred stock. You should read the particular terms of any series of
preferred stock offered by NCB, which will be described in more detail in any
prospectus supplement relating to such series, together with the NCCBA and the
more detailed provisions of NCB's bylaws and the certificate of designation
relating to each particular series of preferred stock
20
<PAGE> 22
for provisions that may be important to you. The NCCBA and NCB's bylaws are
filed as an exhibit to the registration statement of which this prospectus forms
a part. The certificate of designation with respect to any series of preferred
stock will be filed with the SEC as an exhibit to a document incorporated by
reference in this prospectus concurrently with the offering of such preferred
stock. The prospectus supplement will also state whether any of the terms
summarized below do not apply to the series of preferred stock being offered.
GENERAL
Under the NCCBA, NCB is authorized to issue classes of capital stock with
such rights, powers, privileges, and preferences of the separate classes as may
be specified, not inconsistent with law, in the bylaws of NCB. Prior to issuing
any preferred stock, the Board of Directors of NCB will amend NCB's bylaws to
expressly authorize the issuance of preferred stock. That amendment will require
the consent of some of NCB's lenders. After the bylaws are amended, the Board of
Directors of NCB will be authorized, except as otherwise stated in the NCCBA, to
issue shares of preferred stock in one or more series, and to establish from
time to time a series of preferred stock with the following terms specified:
- the number of shares to be included in the series;
- the designation, powers, preferences and rights of the shares of the
series; and
- the qualifications, limitations or restrictions of such series.
Prior to the issuance of any series of preferred stock, the Board of
Directors of NCB will adopt resolutions creating and designating the series as a
series of preferred stock and the resolutions will be filed in a certificate of
designation as an amendment to the bylaws.
The preferred stock will be, when issued, fully paid and nonassessable.
Holders of preferred stock will not have any preemptive or subscription rights
to acquire more stock of NCB.
The transfer agent, registrar, dividend disbursing agent and redemption
agent for shares of each series of preferred stock will be named in the
prospectus supplement relating to such series.
The rights of holders of the offered preferred stock may be adversely
affected by the rights of holders of any shares of preferred stock that may be
issued in the future. The board of directors may cause shares of preferred stock
to be issued in public or private transactions for any proper corporate purpose.
RANK
Unless otherwise specified in the prospectus supplement relating to the
shares of any series of preferred stock, such shares will rank on an equal basis
with each other series of preferred stock and prior to the common stock as to
dividends and distributions of assets.
So long as any Class A Notes are outstanding, the Class A Notes will rank
prior to the preferred stock as to dividends, interest payments and upon
liquidation or dissolution.
DIVIDENDS
Holders of each series of preferred stock will be entitled to receive cash
dividends, when, as and if declared by the board of directors of NCB out of
funds legally available for dividends. The rates and dates of payment of
dividends will be set forth in the prospectus supplement relating to each series
of preferred stock. Dividends will be payable to holders of record of preferred
stock as they appear on the books of NCB on the record dates fixed by the board
of directors. Dividends on any series of preferred stock may be cumulative or
noncumulative.
21
<PAGE> 23
Pursuant to certain loan agreements to which NCB is a party, NCB may not
declare or pay any dividends, either in cash or property, on any series of
preferred stock unless those payments are out of funds that are at the time
available for "restricted payments." See "Description of Debt Securities --
Subordination -- Certain Limitations in Respect of Subordinated Debt Securities"
for the definition of "restricted payments" as well as for a discussion relating
to limitations on NCB's ability to make such payments.
NCB may not declare, pay or set apart for payment dividends on the
preferred stock unless full dividends on any other series of preferred stock
that ranks on an equal or senior basis have been paid or sufficient funds have
been set apart for payment for
- all prior dividend periods of the other series of preferred stock that
pay dividends on a cumulative basis; or
- the immediately preceding dividend period of the other series of
preferred stock that pay dividends on a noncumulative basis.
Partial dividends declared on shares of preferred stock and any other
series of preferred stock ranking on an equal basis as to dividends will be
declared pro rata. A pro rata declaration means that the ratio of dividends
declared per share to accrued dividends per share will be the same for both
series of preferred stock.
Similarly, NCB may not declare, pay or set apart for payment non-stock
dividends or make other payments on the common stock or any other stock of NCB
ranking junior to the preferred stock until full dividends on the preferred
stock have been paid or set apart for payment for
- all prior dividend periods if the preferred stock pays dividends on a
cumulative basis; or
- the dividend period established in the certificate of designation for
each series of preferred stock if the preferred stock pays dividends on a
noncumulative basis.
Under the NCCBA, NCB may not pay any dividend on any class of stock,
including the preferred stock which may be offered by this prospectus and any
prospectus supplement, at a rate greater than the statutory interest rate
payable on the Class A Notes. Although there has been no court or agency
interpretation of that limitation, NCB has consistently interpreted that
limitation to be the weighted average of the then-current interest rates
applicable to the four outstanding Class A Notes (with the weighting based on
outstanding principal amount). As of the date of this prospectus, the statutory
interest rate payable on the Class A Notes (based on the weighted average) was
an annual rate of 6.18%. For more information, see "National Consumer
Cooperative Bank -- Class A Notes" on page 10. NCB is currently seeking an
amendment to the NCCBA that would eliminate this limitation on dividends. There
is, of course, no assurance that the NCCBA will be amended.
Pursuant to Section 3014(c) of the NCCBA, without the approval of the
Secretary of the Treasury, NCB may not pay any dividend or distribution on, or
make any redemption or repurchase of, any class of stock, including the
preferred stock, at any time when the deferred interest payments on Class A
Notes have not been paid in full, together with any unpaid interest on such
notes.
CONVERSION OR EXCHANGE
The prospectus supplement for any series of preferred stock will state the
terms, if any, on which shares of that series are convertible into shares of
another series of preferred stock of NCB. The preferred stock will not be
convertible into or exchangeable for shares of NCB's common stock.
If so determined by the board of directors of NCB, the holders of shares of
preferred stock of any series may be obligated at any time or at maturity to
exchange such shares for preferred stock or
22
<PAGE> 24
debt securities of NCB. The terms of any such exchange and any such preferred
stock or debt securities will be described in the prospectus supplement relating
to such series of preferred stock.
REDEMPTION
If so specified in the applicable prospectus supplement, a series of
preferred stock may be redeemable at any time, in whole or in part, at the
option of NCB or the holder thereof and may be mandatorily redeemed.
Any partial redemptions of preferred stock will be made in a way that the
Board of Directors decides is equitable.
Unless NCB defaults in the payment of the redemption price, dividends will
cease to accrue after the redemption date on shares of preferred stock called
for redemption and all rights of holders of such shares will terminate except
for the right to receive the redemption price.
Pursuant to certain loan agreements to which NCB is a party, NCB may not
purchase, redeem or retire preferred stock issued pursuant to this prospectus
except:
- in exchange for other capital stock of NCB;
- out of the proceeds of a substantially concurrent issue and sale of
capital stock; or
- out of funds that are at the time available for "restricted payments"
under those agreements.
See "Description of Debt Securities -- Subordination -- Certain Limitations in
Respect of Subordinated Debt Securities" for a definition of "restricted
payments" as well as for a discussion relating to limitations on NCB's ability
to make such payments.
In addition, as discussed above, without the approval of the Secretary of
the Treasury, NCB may not make any redemption or repurchase of, any class of
stock, including the preferred stock, at any time when the deferred interest
payments on Class A Notes shall not have been paid in full, together with any
unpaid interest on such notes.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up of
NCB, holders of each series of preferred stock will be entitled to receive
distributions upon liquidation in the amount set forth in the prospectus
supplement relating to such series of preferred stock. Such distributions will
be made before any distribution is made on any securities ranking junior
relating to liquidation, including common stock.
If the liquidation amounts payable relating to the preferred stock of any
series and any other securities ranking on a parity regarding liquidation rights
are not paid in full, the holders of the preferred stock of such series and such
other securities will share in any such distribution of available assets of NCB
on a ratable basis in proportion to the full liquidation preferences. Holders of
such series of preferred stock will not be entitled to any other amounts from
NCB after they have received their full liquidation preference.
Pursuant to the NCCBA, upon any liquidation or dissolution of NCB, the
holder of Class A Notes shall be entitled to receive out of the assets of NCB
available for distribution to its stockholders, prior to any payment to the
holders of any class of stock of NCB, including the preferred stock, an amount
not less than the aggregate face value of all Class A Notes outstanding, plus
all accrued and unpaid interest payments accrued thereon to and including the
date of payment (together with all unpaid interest thereon).
23
<PAGE> 25
VOTING RIGHTS
The holders of shares of preferred stock will have no voting rights,
except:
- as otherwise stated in the prospectus supplement;
- as otherwise stated in the certificate of designation establishing such
series; or
- as required by applicable law.
NCB is a savings and loan holding company within the meaning of the Home
Owners' Loan Act by virtue of its control of NCB Savings Bank, FSB. The Change
in Bank Control Act and the savings and loan holding company provisions of the
Home Owners' Loan Act, together with the regulations of the Office of Thrift
Supervision under such acts, require that the consent of the Office of Thrift
Supervision be obtained prior to any person or company acquiring control of a
savings association or a savings and loan holding company. Under regulations of
the Office of Thrift Supervision, "control" is conclusively presumed to exist if
an individual or company acquires more than 25% of any class of voting stock of
the savings association or savings and loan holding company. Control is
rebuttably presumed to exist if a person acquires more than 10% of any class of
voting stock (or more than 25% of any class of non-voting stock) and is subject
to any of several "control factors." If the holders of a series of preferred
stock become entitled to vote, the preferred stock of such series could be
deemed to be a class of voting stock. Holders and potential holders of the
preferred stock will be responsible for complying with the applicable provisions
of the Change in Bank Control Act and Home Owners' Loan Act.
DESCRIPTION OF CAPITAL STOCK
AUTHORIZED CAPITAL
As of the date of this prospectus, NCB is authorized to issue 1,000,000
shares of Class B common stock, 300,000 shares of Class C common stock and
100,000 shares of Class D common stock, $100 par value, and up to $50 million in
obligations, in addition to the Class A Notes, that would be subordinate to
NCB's senior debt. The Board of Directors of NCB will adopt resolutions
authorizing the issuance and sale of preferred stock prior to issuing any
preferred stock. In addition, in order to issue preferred stock, the Board of
Directors must also amend the bylaws of NCB to expressly authorize the issuance
of preferred stock. The following is a summary of certain rights and privileges
of the common stock. You should read the more detailed provisions of the NCCBA
and NCB's bylaws for provisions that may be important to you.
NCB's voting stock is not traded on any market. NCB is structured as a
cooperative institution whose voting stock can only be owned by its members or
those eligible to become its members.
NCB currently has three classes of stock outstanding whose rights are
summarized below:
OUTSTANDING CLASS B COMMON STOCK
At September 30, 1999, NCB had outstanding 1,000,004 shares of Class B
common stock, $100 par value. All shares of Class B common stock are held by
borrowers or entities eligible to borrow from NCB. A subsidiary of NCB, NCB
Capital Corporation, holds 2.74% of NCB's Class B common stock.
The NCCBA permits Class B stock to be held only by borrowers of NCB and
requires each borrower to hold Class B stock at the time the loan is made whose
par value is equal to 1% of its loan amount. The NCCBA prohibits NCB from paying
dividends on Class B stock. There are two series of Class B stock. Class B-1
stock is Class B stock purchased for cash at par value on or after June 29,
1984, while Class B-2 stock is all other Class B stock. Class B stock is
transferable to another eligible holder only with the approval of NCB. NCB does
not permit any transfers of
24
<PAGE> 26
Class B-2 stock and permits only such transfers, at the stock's $100 par value,
of Class B-1 stock as are required to permit new borrowers to obtain their
required holdings of Class B stock. In each instance, NCB specifies which
holder(s) are permitted to transfer their stock to the new borrower, based upon
which Class B stockholders with holdings of such stock beyond that required to
support their loans have held such stock for the longest time. NCB will also
repurchase, at par value, any shares of Class B stock that it is required to
repurchase from holders by the terms of the contracts under which such stock was
originally sold by NCB. At December 31, 1998, the stock required to be
repurchased was approximately $105,000.
OUTSTANDING CLASS C COMMON STOCK
At September 30, 1999, NCB had outstanding 223,807 shares of Class C common
stock, $100 par value. All shares of Class C common stock are held by borrowers
or entities eligible to borrow from NCB. No affiliates of NCB hold any of NCB's
Class C common stock.
The NCCBA permits Class C stock to be held only by cooperatives eligible to
borrow from NCB. The NCCBA allows NCB to pay dividends on Class C stock, but so
long as any Class A Notes are outstanding, limits dividends on Class C stock (or
any other NCB stock) to the interest rate payable on such notes, which was a
weighted average interest rate of 6.18% as of the date of this prospectus. In
1994, NCB adopted a policy under which annual cash dividends on Class C stock of
up to 2 percent of NCB's net income may be declared. The policy does not provide
any specific method to determine the amount, if any, of such dividend. Whether
any such dividends will be declared and if so, in what amount accordingly rests
within the discretion of NCB's Board of Directors. The Board declared an initial
cash dividend of 83 cents per share of Class C stock, payable on June 30, 1996
to holders of record as of March 31, 1996. On April 24, 1997, the Board declared
a cash dividend of $1.02 per share of Class C stock payable on or before June
30, 1997 to holders of record as of March 31, 1997. On April 23, 1998, the Board
declared a cash dividend of $1.13 per share of Class C stock payable on or
before June 30, 1998 to holders of record as of March 31, 1998. In November
1996, the Board approved a dividend de minimus provision which states that Class
C stock dividends shall not be distributed to a stockholder until such time as
the cumulative amount of the dividend payable to the stockholder is equal to, or
exceeds, twenty-five dollars ($25.00) unless specifically requested by the
stockholder. Class C stock is transferable to another eligible holder only with
the approval of NCB.
OUTSTANDING CLASS D COMMON STOCK
At September 30, 1999, NCB had outstanding 3 shares of Class D common
stock, $100 par value, which is non-voting. No affiliates of NCB hold any of
NCB's Class D common stock.
Class D stock is non-voting stock that may be held by any person. Only
three shares are outstanding and NCB has no present intention to issue any
additional shares of such stock. The NCCBA permits NCB to pay dividends on Class
D stock but NCB has no present intention to declare any such dividends. Class D
stock is transferable only with the approval of NCB. No requests for approval of
such transfers have been made to NCB.
VOTING RIGHTS
Only holders of NCB's Class B and Class C stock have voting rights, and
they vote as one class under the terms of the weighted voting system adopted by
NCB to comply with the NCBAA. The NCB bylaws and voting policy provide that (a)
each stockholder of record who is also a borrower from NCB, referred to as a
"borrower-stockholder," is entitled to five votes, (2) each borrower-
stockholder is entitled to additional votes, up to a total of 120, based on a
formula measuring the proportion that such borrower-stockholder's patronage with
NCB bears to the total patronage during a
25
<PAGE> 27
period of time fixed by the election rules, and (3) each stockholder who is not
a borrower from NCB shall receive one vote, and non-borrower stockholders as a
class shall receive at least 10% of the votes allocated.
The bylaws and voting policy further provide that, notwithstanding any
allocations of votes which would otherwise result from the foregoing rules (1)
no stockholder shall be entitled to more than 5% of the total voting control
held by all stockholders, (2) the total votes allocated to any class of
cooperatives shall not exceed 45% of the total, and (3) no stockholder which is
a "developing cooperative" shall be entitled to more than five votes. A
developing cooperative is defined as a cooperative that is in a developmental or
fledgling state of operation and that does not have members who are ultimate
consumers or primary producers.
NCB has reserved the right to alter its voting policy at any time to comply
with the requirement of the Act that its voting system should not result in: (1)
voting control of NCB becoming concentrated with larger, more affluent or
smaller, less affluent organizations, (2) a disproportionate concentration of
votes in any housing cooperatives or low-income cooperatives or consumer goods
and services cooperatives, or (3) the concentration of more than 5% of the
voting control in any one Class B or Class C stockholder.
NCB may refuse to honor any stockholder's voting rights, except to the
extent of one vote, if the stockholder is more than 90 days late on any payment
to NCB at the time such rights would otherwise be exercised.
TRADING MARKET
There is no established public trading market for any class of NCB's common
equity, and it is unlikely that any such market will develop in view of the
restrictions on transfer of NCB's stock discussed above. Holders of Class B
stock may use such stock to meet the Class B stock ownership requirements
established in the NCCBA for borrowers from NCB and may be permitted by NCB,
within the limits set forth above, to transfer Class B stock to another borrower
from NCB.
As of September 30, 1999, there were 1,471 holders of Class B stock, 399
holders of Class C stock, and 3 holders of Class D stock.
PATRONAGE REFUNDS
Under the NCCBA, NCB must make annual patronage refunds to its patrons,
which are those cooperatives from whose loans or other business NCB derived
interest or other income during the year with respect to which a patronage
refund is declared. NCB allocates its patronage refunds among its patrons
generally in proportion to the amount of income derived during the year from
each patron. NCB stockholders, as such, are not entitled to any patronage
refunds. They are entitled to patronage refunds only in the years when they have
patronized NCB, and the amount of their patronage does not depend on the amount
of their stockholding. Under the NCCBA, patronage refunds may be paid only from
taxable income and only in the form of cash, Class B or Class C stock, or
allocated surplus.
Under NCB's current patronage refund policy that became effective in 1995
and has been amended from time to time since it became effective, NCB makes the
non-cash portion of the refund in the form of Class B stock until a patron has
holdings of Class B or Class C stock of 16% of its loan amount and thereafter in
Class C stock. Under the current patronage refund policy, NCB intends to pay a
higher percentage of the patronage refund in cash to those patrons who have
greater holdings of Class B and Class C stock in proportion to their loan
amount. NCB generally intends to pay a minimum of 40% of the patronage refund in
cash to those patrons with stock holdings less than 5% of their loan amount and
up to 60% to those patrons with stock holdings of 10% or more of their
26
<PAGE> 28
loan amount. There can however, be no assurance that a cash patronage refund of
any amount will be declared for any year.
NCB declared a patronage refund for the year ended December 31, 1998 of
approximately $12.9 million of which approximately $4.9 million was distributed
in cash and $8.0 million in Class B or Class C stock in August 1999. The chart
below sets forth the details of this patronage refund.
<TABLE>
<S> <C>
Total Patronage...................................... $12,896,060.90
Cash:................................................ $ 4,896,285.65
Class B/Class C...................................... $ 7,999,775.25
</TABLE>
PLAN OF DISTRIBUTION
NCB may sell the offered securities (1) through agents; (2) to or through
underwriters or dealers; (3) directly to one or more purchasers; or (4) through
a combination of any of these methods of sale.
The prospectus supplement relating to an offering of offered securities
will set forth the terms of such offering, including:
- the name or names of any underwriters, dealers or agents;
- the purchase price of the offered securities and the proceeds to NCB from
such sale;
- any underwriting discounts and commissions or agency fees and other items
constituting underwriters' or agents' compensation;
- the initial public offering price;
- any discounts or concessions to be allowed or reallowed or paid to
dealers; and
- any securities exchanges on which such offered securities may be listed.
Any initial public offering prices, discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
BY AGENTS
Offered securities may be sold through agents designated by NCB. Any agent
involved in the offer or sale of the offered securities in respect of which this
prospectus is delivered will be named, and any commissions payable by NCB to
such agent will be set forth, in the prospectus supplement relating to that
offering. Unless otherwise indicated in such prospectus supplement, the agents
will agree to use their reasonable best efforts to solicit purchases for the
period of their appointment.
BY UNDERWRITERS
If underwriters are used in the offering, the offered securities will be
acquired by the underwriters for their own account. The underwriters may resell
the securities from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale. The securities may be either offered to the
public through underwriting syndicates represented by one or more managing
underwriters or by one or more underwriters without a syndicate. The obligations
of the underwriters to purchase the securities will be subject to certain
conditions. The underwriters will be obligated to purchase all the securities of
the series offered if any of the securities are purchased. Any initial public
offering price and any discounts or concessions allowed or re-allowed or paid to
dealers may be changed from time to time.
In connection with underwritten offerings of the offered securities and in
accordance with applicable law and industry practice, underwriters may
over-allot or effect transactions that stabilize, maintain or otherwise affect
the market price of the offered securities at levels above those that might
otherwise prevail in the open market, including by entering stabilizing bids,
effecting syndicate covering transactions or imposing penalty bids, each of
which is described below.
27
<PAGE> 29
- A stabilizing bid means the placing of any bid, or the effecting of any
purchase, for the purpose of pegging, fixing or maintaining the price of
a security.
- A syndicate covering transaction means the placing of any bid on behalf
of the underwriting syndicate or the effecting of any purchase to reduce
a short position created in connection with the offering.
- A penalty bid means an arrangement that permits the managing underwriter
to reclaim a selling concession from a syndicate member in connection
with the offering when offered securities originally sold by the
syndicate member are purchased in syndicate covering transactions.
These transactions may be effected in the over-the-counter market, or
otherwise. Underwriters are not required to engage in any of these activities,
or to continue such activities if commenced.
DIRECT SALES
Offered securities may also be sold directly by NCB. In this case, no
underwriters or agents would be involved.
GENERAL INFORMATION
NCB may have agreements with the underwriters, dealers and agents to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act of 1933, as amended, or to contribute with respect to
payments which the underwriters, dealers or agents may be required to make.
Each series of offered securities will be a new issue of securities and
will have no established trading market. Any underwriters to whom offered
securities are sold for public offering and sale may make a market in such
offered securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given that there will be a market for the offered securities.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, NCB or its subsidiaries in the ordinary course of their
businesses.
WHERE YOU CAN FIND MORE INFORMATION
NCB files annual, quarterly and current reports, proxy statements and other
information with the SEC. NCB has also filed with the SEC a registration
statement on Form S-3, to register the securities being offered by this
prospectus. This prospectus, which forms part of the registration statement,
does not contain all of the information included in the registration statement.
For further information about NCB and the securities offered in this prospectus,
you should refer to the registration statement and its exhibits.
You may read and copy any document filed by NCB with the SEC at the SEC's
Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please
call the SEC at 1-800-SEC-0330 for further information on the operation of the
Public Reference Room. NCB files its SEC materials electronically with the SEC,
so you can also review NCB's filings by accessing the web site maintained by
the SEC at http://www.sec.gov. This site contains reports, proxy and
information statements and other information regarding issuers that file
electronically with the SEC.
The SEC allows NCB to "incorporate by reference" the information it files
with them, which means that it can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be a part of this prospectus. Information that NCB files later
with the SEC will automatically update and supersede information in this
prospectus. In all cases, you should rely on the later information over
different information included in this
28
<PAGE> 30
prospectus or the prospectus supplement. NCB has previously filed the following
documents with the SEC and is incorporating them by reference into this
prospectus:
- Annual Report on Form 10-K for the year ended December 31, 1998; and
- Quarterly Reports on Form 10-Q, for the quarters ended March 31, 1999,
June 30, 1999 and September 30, 1999.
NCB also incorporates by reference all documents filed by it with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
after the date of this prospectus and until NCB sells all of the securities
being offered by this prospectus.
You may request a copy of these filings at no cost, by writing or
telephoning NCB at the following address:
National Cooperative Bank
Attn: Richard L. Reed or William E. Seas
1401 Eye Street, N.W.
Suite 700
Washington, DC 20005
(202) 336-7700
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. NCB has not authorized
anyone else to provide you with different information. NCB is not making an
offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
LEGAL OPINIONS
Unless otherwise specified in the applicable prospectus supplement, Shea &
Gardner will issue an opinion about the legality of the offered securities for
NCB. Unless otherwise specified in the applicable prospectus supplement, any
underwriters will be advised about certain issues relating to any offering by
Brown & Wood LLP.
EXPERTS
The audited financial statements for the years ended December 31, 1998 and
December 31, 1997 incorporated by reference in this prospectus and elsewhere in
the registration statement, have been audited by Arthur Andersen LLP independent
public accountants, and are included herein in reliance upon the authority of
said firm as experts in giving said reports.
The financial statements for the year ended December 31, 1996, incorporated
by reference in this prospectus and elsewhere in the registration statement,
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their reports incorporated by reference herein and elsewhere in the registration
statement, and are included in reliance upon the reports of such firm given upon
their authority as experts in accounting and auditing.
29
<PAGE> 31
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:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $ 97,300
Accounting fees and expenses................................ 40,000
Legal fees and expenses..................................... 150,000
Trustee's fees and expenses................................. 10,000
Printing and engraving expenses............................. 40,000
Rating Agency fees.......................................... 65,000
Miscellaneous expenses...................................... 25,000
--------
Total....................................................... $427,300
========
</TABLE>
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 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,
II-1
<PAGE> 32
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 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
II-2
<PAGE> 33
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 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
II-3
<PAGE> 34
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
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<S> <C>
1.1** Form of Underwriting Agreement relating to Debt Securities
1.2** Form of Underwriting Agreement relating to Preferred Stock
3.1 National Consumer Cooperative Bank Act, as amended through
1981 (Incorporated by reference to exhibit 3.1 filed as part
of Registration Statement No. 2-99779 (Filed August 20,
1985)
3.2 1989 Amendment to National Consumer Cooperative Bank Act
(Incorporated by reference to exhibit 3.2 filed as part of
the Registrant's annual report on form 10-K for the year
ended December 31, 1989 (File No. 2 -99779)
3.3 Bylaws of NCB (Incorporated by reference to exhibit 3.3
filed as part of Registration Statement No. 33-42403
(initially filed September 6, 1991))
4.1 Form of Senior Indenture (Incorporated by reference to
exhibit 4.1 filed as part of Registration Statement No.
333-17003 (initially filed November 27, 1996))
4.2 Form of Subordinated Indenture
4.3** Form of Senior Debt Security
4.4** Form of Subordinated Debt Security
4.5** Form of Certificate of Designations, Preferences and Rights
of Preferred Stock. For other instruments defining the
rights of holders of the Preferred Stock, see exhibits 3.1,
3.2 and 3.3
4.6** Specimen Preferred Stock Certificate
5 Opinion of Shea & Gardner
12 Computation of Ratio of Earnings to Fixed Charges and Ratio
of Earnings to Combined Fixed Charges and Preferred Stock
Dividends
23.1* Consent of Arthur Andersen LLP
23.2* 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
</TABLE>
- ---------------
* Previously filed.
** To be filed by Post-effective amendment or by a Current Report on Form 8-K.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the Debt Securities registered hereby, a post-effective amendment to
this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which,
II-4
<PAGE> 35
individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) under the
Act if, in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
Registration Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the Debt Securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Act,
each filing of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may
be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions referred to in Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-5
<PAGE> 36
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 Amendment No. 1 to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Washington, D.C. on the 21st day of December,
1999.
NATIONAL CONSUMER COOPERATIVE
BANK
By: /s/ CHARLES E. SNYDER
------------------------------------
Charles E. Snyder
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME AND SIGNATURE TITLE DATE
------------------ ----- ----
<S> <C> <C>
/s/ JAMES L. BURNS, JR. Chairman of the Board and December 21, 1999
- --------------------------------------------------- Director
James L. Burns, Jr.*
/s/ KIRBY J. ERICKSON Vice Chairman of the Board December 21, 1999
- --------------------------------------------------- and Director
Kirby J. Erickson*
/s/ RICHARD L. REED Managing Director (Principal December 21, 1999
- --------------------------------------------------- Financial Officer)
Richard L. Reed
/s/ PATRICIA A. FERRICK Vice President (Principal December 21, 1999
- --------------------------------------------------- Accounting Officer)
Patricia A. Ferrick
/s/ HARRY J. BOWIE Director December 21, 1999
- ---------------------------------------------------
Harry J. Bowie*
/s/ JOSEPH CABRAL Director December 21, 1999
- ---------------------------------------------------
Joseph Cabral*
/s/ EBEN HOPSON, JR. Director December 21, 1999
- ---------------------------------------------------
Eben Hopson, Jr.*
/s/ JACKIE JENKINS-SCOTT Director December 21, 1999
- ---------------------------------------------------
Jackie Jenkins-Scott*
</TABLE>
II-6
<PAGE> 37
<TABLE>
<CAPTION>
NAME AND SIGNATURE TITLE DATE
------------------ ----- ----
<S> <C> <C>
/s/ MARILYN J. MCQUAIDE Director December 21, 1999
- ---------------------------------------------------
Marilyn J. McQuaide*
/s/ MICHAEL J. MERCER Director December 21, 1999
- ---------------------------------------------------
Michael J. Mercer*
/s/ ALEX N. MILLER Director December 21, 1999
- ---------------------------------------------------
Alex N. Miller*
/s/ ALFRED A. PLAMANN Director December 21, 1999
- ---------------------------------------------------
Alfred A. Plamann*
/s/ STUART M. SAFT Director December 21, 1999
- ---------------------------------------------------
Stuart M. Saft*
/s/ SHEILA A. SMITH Director December 21, 1999
- ---------------------------------------------------
Sheila A. Smith*
/s/ PETER C. YOUNG Director December 21, 1999
- ---------------------------------------------------
Peter C. Young*
/s/ THOMAS K. ZAUCHA Director December 21, 1999
- ---------------------------------------------------
Thomas K. Zaucha*
</TABLE>
- ---------------
* The undersigned, by signing his name hereto, does hereby execute this
Amendment No. 1 to the Registration Statement on behalf of the above indicated
officers and directors of National Consumer Cooperative Bank, pursuant to
Powers of Attorney executed by each such officer and director appointing the
undersigned as attorney-in-fact and filed with the Securities and Exchange
Commission.
By: /s/ RICHARD L. REED
----------------------------------------------------
Richard L. Reed
Attorney-in-fact
II-7
<PAGE> 38
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<S> <C>
1.1** Form of Underwriting Agreement relating to Debt Securities
1.2** Form of Underwriting Agreement relating to Preferred Stock
3.1 National Consumer Cooperative Bank Act, as amended through
1981 (Incorporated by reference to exhibit 3.1 filed as part
of Registration Statement No. 2-99779 (Filed August 20,
1985))
3.2 1989 Amendment to National Consumer Cooperative Bank Act
(Incorporated by reference to exhibit 3.2 filed as part of
the Registrant's annual report on Form 10-K for the year
ended December 31, 1989 (File No. 2-99779))
3.3 Bylaws of NCB (Incorporated by reference to exhibit 3.3
filed as part of Registration Statement No. 33-42403
(initially filed September 6, 1991))
4.1 Form of Senior Indenture (Incorporated by reference to
exhibit 4.1 filed as part of Registration Statement No.
333-17003 (initially filed November 27, 1996))
4.2 Form of Subordinated Indenture
4.3** Form of Senior Debt Security
4.4** Form of Subordinated Debt Security
4.5** Form of Certificate of Designations, Preferences and Rights
of Preferred Stock. For other instruments defining the
rights of holders of the Preferred Stock, see exhibits 3.1,
3.2 and 3.3
4.6** Specimen Preferred Stock Certificate
5 Opinion of Shea & Gardner
12 Computation of Ratio of Earnings to Fixed Charges and Ratio
of Earnings to Combined Fixed Charges and Preferred Stock
Dividends
23.1* Consent of Arthur Andersen LLP
23.2* 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
</TABLE>
- ---------------
* Previously filed.
** To be filed by Post-effective amendment or by a Current Report on Form 8-K.
<PAGE> 1
EXHIBIT 4.2
NATIONAL CONSUMER COOPERATIVE BANK,
Issuer
to
BANK ONE TRUST COMPANY, N.A.,
Trustee
---------------
INDENTURE
---------------
Dated as of -, 1999
Subordinated Securities
<PAGE> 2
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.
ii
<PAGE> 3
TABLE OF CONTENTS
Page
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...........................................................3
Corporate Trust Office.....................................................4
Corporation................................................................4
Coupon.....................................................................4
Currency...................................................................4
CUSIP number...............................................................4
Defaulted Interest.........................................................4
Dollars or $...............................................................4
Euroclear..................................................................4
Event of Default...........................................................4
Foreign Currency...........................................................4
GAAP.......................................................................4
Government Obligations.....................................................5
Holder.....................................................................5
Indebtedness...............................................................5
Indebtedness Ranking on a Parity with the Securities.......................5
Indebtedness Ranking Junior to the Securities..............................5
Indenture..................................................................5
Independent Public Accountants.............................................5
Indexed Security...........................................................6
Interest...................................................................6
Interest Payment Date......................................................6
Issuer.....................................................................6
iii
<PAGE> 4
Issuer Request and Issuer Order............................................6
Judgment Currency..........................................................6
Legal Holidays.............................................................6
Maturity...................................................................6
New York Banking Day.......................................................6
Office or Agency...........................................................6
Officers' Certificate......................................................7
Opinion of Counsel.........................................................7
Original Issue Discount Security...........................................7
Outstanding................................................................7
Paying Agent...............................................................8
Person.....................................................................8
Place of Payment...........................................................9
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
Senior Indebtedness.......................................................10
Special Record Date.......................................................10
Stated Maturity...........................................................10
Subsidiary................................................................10
Trust Indenture Act.......................................................10
Trustee...................................................................10
United States.............................................................10
United States Alien.......................................................10
U.S. Depository or Depository.............................................11
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.........................................15
Section 111. Separability Clause............................................16
Section 112. Benefits of Indenture..........................................16
Section 113. Governing Law..................................................16
iv
<PAGE> 5
Section 114. Legal Holidays.................................................16
Section 115. Counterparts...................................................16
Section 116. Judgment Currency..............................................16
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...............29
Section 307. Payment of Interest and Certain Additional Amounts; Rights
to Interest and Certain Additional Amounts Preserved.........30
Section 308. Persons Deemed Owners..........................................32
Section 309. Cancellation...................................................33
Section 310. Computation of Interest........................................33
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.....................................33
Section 402. Defeasance and Covenant Defeasance.............................35
Section 403. Application of Trust Money.....................................39
ARTICLE FIVE
REMEDIES
Section 501. Events of Default..............................................39
Section 502. Acceleration of Maturity; Rescission and Annulment.............40
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee......................................................41
Section 504. Trustee May File Proofs of Claim...............................42
Section 505. Trustee May Enforce Claims without Possession of Securities
or Coupons...................................................43
Section 506. Application of Money Collected.................................43
Section 507. Limitations on Suits...........................................44
v
<PAGE> 6
Section 508. Unconditional Right of Holders to Receive Principal and
any Premium, Interest and Additional Amounts.................44
Section 509. Restoration of Rights and Remedies.............................45
Section 510. Rights and Remedies Cumulative.................................45
Section 511. Delay or Omission Not Waiver...................................45
Section 512. Control by Holders of Securities...............................45
Section 513. Waiver of Past Defaults........................................46
Section 514. Waiver of Stay or Extension Laws...............................46
Section 515. Undertaking for Costs..........................................46
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee......................................47
Section 602. Notice of Defaults.............................................48
Section 603. Not Responsible for Recitals or Issuance of Securities.........48
Section 604. May Hold Securities............................................49
Section 605. Money Held in Trust............................................49
Section 606. Compensation and Reimbursement.................................49
Section 607. Corporate Trustee Required.....................................50
Section 608. Resignation and Removal; Appointment of Successor..............50
Section 609. Acceptance of Appointment by Successor.........................51
Section 610. Merger, Conversion, Consolidation or Succession to Business....53
Section 611. Appointment of Authenticating Agent............................53
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND ISSUER
Section 701. Issuer to Furnish Trustee Names and Addresses of Holders.......55
Section 702. Preservation of Information; Communications to Holders.........55
Section 703. Reports by Trustee.............................................56
Section 704. Reports by Issuer..............................................56
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Issuer May Consolidate, Etc....................................57
Section 802. Successor Person Substituted for Issuer........................57
vi
<PAGE> 7
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.............58
Section 902. Supplemental Indentures with Consent of Holders................59
Section 903. Execution of Supplemental Indentures...........................60
Section 904. Effect of Supplemental Indentures..............................60
Section 905. Reference in Securities to Supplemental Indentures.............61
Section 906. Conformity with Trust Indenture Act............................61
Section 907. Effect on Senior Indebtedness..................................61
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, any Premium, Interest and
Additional Amounts..........................................61
Section 1002. Maintenance of Office or Agency...............................62
Section 1003. Money for Securities Payments to Be Held in Trust.............63
Section 1004. Additional Amounts............................................64
Section 1005. Corporate Existence...........................................65
Section 1006. Waiver of Certain Covenants...................................65
Section 1007. Issuer Statement as to Compliance; Notice of Certain
Defaults....................................................66
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article......................................66
Section 1102. Election to Redeem; Notice to Trustee.........................66
Section 1103. Selection by Trustee of Securities to be Redeemed.............67
Section 1104. Notice of Redemption..........................................67
Section 1105. Deposit of Redemption Price...................................69
Section 1106. Securities Payable on Redemption Date.........................69
Section 1107. Securities Redeemed in Part...................................70
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article......................................70
Section 1202. Satisfaction of Sinking Fund Payments with Securities.........71
Section 1203. Redemption of Securities for Sinking Fund.....................71
vii
<PAGE> 8
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article......................................72
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article......................................72
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.....................73
Section 1502. Call, Notice and Place of Meetings............................73
Section 1503. Persons Entitled to Vote at Meetings..........................73
Section 1504. Quorum; Action................................................73
Section 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings.................................................74
Section 1506. Counting Votes and Recording Action of Meetings...............75
ARTICLE SIXTEEN
SUBORDINATION
Section 1601. Agreement to Subordinate......................................76
Section 1602. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities...................76
Section 1603. No Payment on Securities in Event of Default on Senior
Indebtedness................................................79
Section 1604. Payments on Securities Permitted..............................79
Section 1605. Authorization of Holders to Trustee to Effect
Subordination...............................................79
Section 1606. Notices to Trustee............................................80
Section 1607. Trustee as Holder of Senior Indebtedness......................81
Section 1608. Modifications of Terms of Senior Indebtedness.................81
Section 1609. Reliance on Judicial Order or Certificate of Liquidating
Agent.......................................................81
Section 1610. Article Sixteen Not to Prevent Events of Default..............82
viii
<PAGE> 9
INDENTURE, dated as of -, 1999 (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 BANK ONE TRUST COMPANY, N.A., 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 unsecured and
subordinated 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> 10
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
2
<PAGE> 11
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.
3
<PAGE> 12
"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 or
(ii) any currency unit or composite currency 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.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, or its successor, as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Foreign Currency" means any currency, currency unit or composite
currency 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
4
<PAGE> 13
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.
"Indebtedness Ranking on a Parity with the Securities" means all
Indebtedness of the Issuer, whether outstanding on the date of the execution of
this Indenture or thereafter created, assumed or incurred, which specifically by
its terms ranks equally with and not prior to the Securities in right of
payment.
"Indebtedness Ranking Junior to the Securities" means all
Indebtedness of the Issuer, whether outstanding on the date of the execution of
this Indenture or thereafter created, assumed or incurred, which specifically by
its terms ranks junior to and not equally with or prior to Securities in right
of payment.
"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).
"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
5
<PAGE> 14
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.
"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.
6
<PAGE> 15
"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 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;
7
<PAGE> 16
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.
"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
8
<PAGE> 17
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.
"Senior Indebtedness" means, unless otherwise determined with
respect to any series of Securities pursuant to Section 301, all Indebtedness of
the Issuer, whether outstanding on the date of the execution of this Indenture
or thereafter created, assumed or incurred except for (i) the Securities, (ii)
Indebtedness Ranking on a Parity with the Securities and (iii) Indebtedness
Ranking Junior to the Securities.
"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.
9
<PAGE> 18
"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.
10
<PAGE> 19
"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.
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
11
<PAGE> 20
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.
(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.
12
<PAGE> 21
(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 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.
13
<PAGE> 22
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 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.
14
<PAGE> 23
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.
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.
15
<PAGE> 24
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.
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
16
<PAGE> 25
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, 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.
17
<PAGE> 26
BANK ONE TRUST COMPANY, N.A.,
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 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
18
<PAGE> 27
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);
(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
19
<PAGE> 28
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;
(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;
20
<PAGE> 29
(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 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;
21
<PAGE> 30
(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;
(23) if other than as specified in Article Sixteen, the
subordination provisions applicable with respect to the Securities of the
series, including a different definition of the term "Senior
Indebtedness;" and
(23) any other terms of such Securities and any deletions from or
modifications or additions to this Indenture in respect of such
Securities.
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
22
<PAGE> 31
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.
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
23
<PAGE> 32
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
(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
24
<PAGE> 33
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.
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
25
<PAGE> 34
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.
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,
26
<PAGE> 35
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.
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
27
<PAGE> 36
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 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.
28
<PAGE> 37
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.
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
29
<PAGE> 38
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.
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:
30
<PAGE> 39
(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 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.
31
<PAGE> 40
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 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
32
<PAGE> 41
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.
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
33
<PAGE> 42
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 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.
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
34
<PAGE> 43
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 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
35
<PAGE> 44
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 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
36
<PAGE> 45
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.
(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.
37
<PAGE> 46
(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 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
38
<PAGE> 47
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
(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
39
<PAGE> 48
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
(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
40
<PAGE> 49
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
(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,
41
<PAGE> 50
(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 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.
42
<PAGE> 51
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
(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.
43
<PAGE> 52
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: Subject to Article Sixteen, to the payment of the amounts
then due and unpaid upon the Securities and any Coupons for principal and
any premium, interest and Additional 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: Subject to Article Sixteen, 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;
44
<PAGE> 53
(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.
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
45
<PAGE> 54
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 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
46
<PAGE> 55
(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.
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.
47
<PAGE> 56
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 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
48
<PAGE> 57
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.
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
49
<PAGE> 58
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.
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
50
<PAGE> 59
predecessor Trustee but the negligence or bad faith of any Trustee shall not
affect the rights of any other Trustee under this Section 606.
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,
51
<PAGE> 60
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,
52
<PAGE> 61
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
53
<PAGE> 62
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.
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
54
<PAGE> 63
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.
BANK ONE TRUST COMPANY, N.A.,
As Trustee
By
-------------------------------
As Authenticating Agent
55
<PAGE> 64
By
-------------------------------
As Authenticating Agent
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.
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
56
<PAGE> 65
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, 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.
57
<PAGE> 66
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, 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,
58
<PAGE> 67
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 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
59
<PAGE> 68
(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 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
60
<PAGE> 69
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) modify any of the provisions of this Indenture relating to the
subordination of the Securities in a manner adverse to the Holders, or
(5) 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.
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
61
<PAGE> 70
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.
Section 907. Effect on Senior Indebtedness.
No supplemental indenture entered into under this Article 9 shall
modify, directly or indirectly, the provisions of Article Sixteen or the
definition of Senior Indebtedness in Section 101 in any manner that might alter
or impair the subordination of the Securities with respect to the Senior
Indebtedness then Outstanding, unless each holder of such Senior Indebtedness
has consented thereto in writing.
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
62
<PAGE> 71
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.
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
63
<PAGE> 72
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.
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;
64
<PAGE> 73
(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 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,
65
<PAGE> 74
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.
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,
66
<PAGE> 75
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.
(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.
67
<PAGE> 76
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.
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:
68
<PAGE> 77
(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 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).
69
<PAGE> 78
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.
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
70
<PAGE> 79
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 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
71
<PAGE> 80
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series 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
72
<PAGE> 81
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.
73
<PAGE> 82
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 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
74
<PAGE> 83
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.
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
75
<PAGE> 84
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 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.
76
<PAGE> 85
(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.
(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.
ARTICLE SIXTEEN
SUBORDINATION
Section 1601. Agreement to Subordinate.
The Issuer, for itself, its successors and assigns, covenants and
agrees, and each Holder of Securities of any series (or of any Coupons
appertaining thereto) by his acceptance thereof, likewise covenants and agrees,
for himself, his successors and assigns, that the indebtedness represented by
the Securities of such series then Outstanding (and any Coupons appertaining
thereto) and the payment of the principal of (and premium, if any) and interest
on each and all of the Securities of such series (including, without limitation,
any payment of Coupons appertaining thereto) is hereby expressly subordinated,
to the extent and in the manner
77
<PAGE> 86
hereinafter set forth, in right of payment to the prior payment in full of all
Senior Indebtedness. Each reference in this Article to a "Security" or
"Securities" refers to the Securities of a particular series, and references to
a "Coupon" or "Coupons" refer to the Coupons, if any, appertaining to the
Securities of such series. Without limiting the generality of the immediately
preceding sentence, if more than one series of Securities are outstanding at any
time, (i) the provisions of this Article shall be applied separately to each
such series, and (ii) references to the Trustee refer to the Trustee for the
Securities of such series.
Section 1602. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities.
Upon any distribution of assets of the Issuer upon any dissolution,
winding up, liquidation or reorganization, of the Issuer, whether voluntary or
involuntary and whether in bankruptcy, insolvency, reorganization, receivership
or other proceedings or upon an assignment for the benefit of creditors or any
other marshalling of the assets and liabilities of the Issuer or otherwise
(subject to the power of a court of competent jurisdiction to make other
equitable provision reflecting the rights conferred in this Indenture upon the
Senior Indebtedness and the holders thereof with respect to the Securities and
the Holders thereof by a plan of reorganization under applicable bankruptcy
law):
(a) the holders of all Senior Indebtedness shall be entitled to
receive payment in full of the principal thereof (and premium, if any) and
interest due thereon before the Holders of the Securities (or of any
Coupons) are entitled to receive any payment upon the principal (and
premium, if any) or interest on indebtedness evidenced by the Securities
(or any payment of any Coupons); and
(b) any payment or distribution of the Issuer of any kind or
character, whether in cash, property or securities, to which the Holders of
the Securities (or of any Coupons) or the Trustee would be entitled except
for the provisions of this Article Sixteen shall be paid by the liquidating
trustee or agent or other person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the principal of (and premium, if
any) and interest on the Senior Indebtedness held or represented by each,
to the extent necessary to make payment in full of all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Issuer of any kind or character, whether in
cash, property or securities, shall be received by the Trustee, any Paying
Agent or the Holders of the Securities (or any Coupons) before all Senior
Indebtedness is paid in full, such payment or distribution
78
<PAGE> 87
shall be paid over, upon written notice to the Trustee or such Paying
Agent, to the holder of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instrument evidencing any of such Senior Indebtedness may have
been issued, ratably as aforesaid, for application to payment of all Senior
Indebtedness remaining unpaid until all such Senior Indebtedness shall have
been paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
The consolidation of the Issuer with, or the merger of the Issuer
into, another corporation or the liquidation or dissolution of the Issuer
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation shall not be deemed a
dissolution, winding up, liquidation or reorganization for the purposes of this
Section 1602.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities (and of any Coupons) shall be subrogated to the rights
of the holders of Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Issuer applicable to Senior Indebtedness
until the principal of (and premium, if any) and interest on the Securities
(including, without limitation, payment of the Coupons) shall be paid in full,
and no such payments or distributions to the Holders of the Securities (or of
any Coupons) of cash, property, or securities otherwise distributable to the
holders of Senior Indebtedness shall, as between the Issuer, its creditors other
than the holders of Senior Indebtedness, and the Holders of the Securities (and
of any Coupons) be deemed to be a payment by the Issuer to or on account of the
Securities (or of any Coupons). It is understood that the provisions of this
Article Sixteen are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities (and of any Coupons), on the
one hand, and the holders of the Senior Indebtedness, on the other hand.
Nothing contained in this Article Sixteen or elsewhere in this
Indenture or in the Securities (or any Coupons) is intended to or shall impair,
as between the Issuer, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Securities (and of any Coupons), the
obligation of the Issuer, which is unconditional and absolute (and which,
subject to the rights under this Article of the holders of Senior Indebtedness,
is intended to rank equally with all other obligations of the Issuer), to pay to
the Holders of the Securities (and of any Coupons) the principal of (and
premium, if any) and interest on the Securities (including, without limitation,
payment of any Coupons) as and when the same shall become due and payable in
accordance with their terms, or to affect the relative rights of the Holders of
the Securities (or of any Coupons) and creditors of the Issuer other than the
holders of Senior Indebtedness, nor shall anything herein or in the Securities
(or Coupons) prevent the Trustee or the Holder of any Security (or any Coupon)
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article Sixteen
of the holders of Senior Indebtedness, in respect of cash, property or
securities of the Issuer received upon the exercise of any such remedy.
79
<PAGE> 88
Upon any payment or distribution of assets of the Issuer referred to
in this Section 1602, the Trustee and any Paying Agent, subject to the
provisions of Section 601, shall be entitled to rely upon a certificate or other
writing of the liquidating trustee or agent or other Person making any
distribution to the Trustee for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of Senior Indebtedness and
other indebtedness of the Issuer, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent to
this Article Sixteen.
Except as specifically set forth herein, neither the Trustee nor any
Paying Agent, however, shall be deemed to owe any fiduciary or other duty to the
holders of Senior Indebtedness. Neither the Trustee nor any Paying Agent shall
be liable to any such holder if it shall in good faith pay or distribute to or
on behalf of Holders of Securities (or of any Coupons) of the Issuer moneys or
assets to which any holder of Senior Indebtedness shall be entitled by virtue of
this Article Sixteen or any other instrument.
If the Trustee or any Holder of Securities (and of any Coupons) does
not file a proper claim or proof of debt in the form required in any proceeding
referred to above prior to 30 days before the expiration of the time to file
such claim in such proceeding, then the holder of any Senior Indebtedness is
hereby authorized, and has the right, to file an appropriate claim or claims for
or on behalf of such Holder of Securities (or of any Coupons).
Section 1603. No Payment on Securities in Event of Default on Senior
Indebtedness.
No payment by the Issuer on account of principal (or premium, if
any), sinking funds or interest on the Securities (including, without
limitation, payment of any Coupons) shall be made unless full payment of amounts
then due for principal, premium, if any, sinking funds, and interest on Senior
Indebtedness has been made or duly provided for. In the event that any event of
default with respect to any Senior Indebtedness shall have occurred and be
continuing permitting the holders of such Senior Indebtedness (or a trustee on
behalf of the holders thereof) to declare such Senior Indebtedness due and
payable prior to the date on which it would otherwise have become due and
payable, unless and until such event of default shall have been cured or waived
or shall have ceased to exist and such acceleration shall have been rescinded or
annulled, or in the event any judicial proceeding shall be pending with respect
to any such default in payment, or event of default, then no payment shall be
made by the Issuer on account of principal of (or premium, if any) or interest
on the Securities of any series or on account of the purchase or other
acquisition of Securities of any series; provided, however, that nothing in this
Section shall prevent the satisfaction of any sinking fund payment in accordance
with Article Twelve by delivering and crediting pursuant to Section 1202
Securities of such series which have been acquired (upon redemption or
otherwise) prior to such default in payment or event of default.
In the event that, notwithstanding the foregoing, the Issuer shall
make any payment to the Trustee or the Holder of any Security of any series
prohibited by the foregoing
80
<PAGE> 89
provisions of this Section, and if such fact shall, at or prior to the time of
such payment, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such payment shall be paid over and delivered
forthwith to the Issuer.
The provisions of this Section shall not apply to any payment with
respect to which Section 1602 would be applicable.
Section 1604. Payments on Securities Permitted.
Nothing contained in this Indenture or in any of the Securities (or
any Coupons) shall (a) affect the obligation of the Issuer to make, or prevent
the Issuer from making, at any time except as provided in Sections 1602 and
1603, payments of principal (and premium, if any) or interest on the Securities
(including, without limitation, payment of any Coupons) or (b) prevent the
application by the Trustee of any moneys deposited with it hereunder to the
payment of or on account of the principal of (and premium, if any) or interest
on the Securities (including, without limitation, the payment of any Coupons),
unless the Trustee shall have received at its Corporate Trust Office written
notice of any event prohibiting the making of such payment more than two
Business Days prior to the date fixed for such payment.
Section 1605. Authorization of Holders to Trustee to Effect
Subordination.
Each Holder of Securities (or of any Coupons) by his acceptance
thereof and any Paying Agent (other than the Issuer) authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article Sixteen and appoints
the Trustee his attorney-in-fact for any and all such purposes.
Section 1606. Notices to Trustee.
The Issuer shall give prompt written notice to the Trustee and any
Paying Agent (other than the Issuer) of any fact known to the Issuer which would
prohibit the making of any payment to or by the Trustee or such Paying Agent in
respect of the Securities (or any Coupons) pursuant to this Article Sixteen.
Failure to give such notice shall not affect the subordination of the Securities
(or any Coupons) to Senior Indebtedness. Notwithstanding the provisions of this
Article or any other provisions of this Indenture, neither the Trustee nor any
Paying Agent (other than the Issuer) shall be charged with knowledge of the
existence of any Senior Indebtedness or of any event which would prohibit the
making of any payment of moneys to or by the Trustee or such Paying Agent,
unless and until the Trustee or such Paying Agent shall have received (in the
case of the Trustee, at its Corporate Trust Office) written notice thereof from
the Issuer or from the holder of any Senior Indebtedness or from the trustee for
any such holder, together with proof satisfactory to the Trustee of such holding
of Senior Indebtedness or of the authority of such trustee; provided, however,
that if at least two Business Days prior to the date upon which by the terms
hereof any such moneys may become payable for any purpose (including, without
limitation, the payment of either the principal of (and premium, if any) or
interest on any Security (including, without limitation, the payment of any
Coupons)) the Trustee or any such Paying Agent shall not have received with
respect to such moneys the notice provided for in this
81
<PAGE> 90
Section 1606, then, anything herein contained to the contrary notwithstanding,
the Trustee or any such Paying Agent shall have full power and authority to
receive such moneys and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary, which may be
received by it less than two Business Days prior to such date. The Trustee or
any such Paying Agent shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish that such a
notice has been given by a holder of Senior Indebtedness or a trustee on behalf
of any such holder. In the event that the Trustee or any such Paying Agent
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article Sixteen, the Trustee or any
such Paying Agent may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee or any such Paying Agent as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Sixteen and, if such evidence is not
furnished, the Trustee or any such Paying Agent may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
Section 1607. Trustee as Holder of Senior Indebtedness.
Subject to the provisions of Section 311 of the Trust Indenture Act,
the Trustee in its individual capacity shall be entitled to all the rights set
forth in this Article Sixteen in respect of any Senior Indebtedness at any time
held by it, to the same extent as any other holder of Senior Indebtedness and
nothing in this Indenture shall be construed to deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 606.
Section 1608. Modifications of Terms of Senior Indebtedness.
Any renewal or extension of the time of payment of any Senior
Indebtedness or the exercise by the holders of Senior Indebtedness of any of
their rights under any instrument creating or evidencing Senior Indebtedness,
including, without limitation, the waiver of default thereunder, may be made or
done all without notice to or assent from the Holders of the Securities (or of
any Coupons) or the Trustee.
No compromise, alteration, amendment, modification, extension,
renewal or other change of, or waiver, consent or other action in respect of,
any liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Indebtedness is outstanding or of such Senior Indebtedness, whether or
not such release is in accordance with the provisions of any applicable
document, shall in any way alter or affect any of the provisions of this Article
Sixteen or of the Securities (or of any Coupons) relating to the subordination
thereof.
82
<PAGE> 91
Section 1609. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Issuer referred to
in this Article Sixteen, the Trustee and the Holders of the Securities (and of
any Coupons) shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which any insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or upon a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities (or of any Coupons),
for the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of Senior Indebtedness and other
indebtedness of the Issuer, the amount thereof or payable therein, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article Sixteen.
Section 1610. Article Sixteen Not to Prevent Events of Default.
No provision of this Article Sixteen shall prevent the occurrence of
any default or Event of Default hereunder.
* * * * *
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.
83
<PAGE> 92
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] BANK ONE TRUST COMPANY, N.A.,
as Trustee
Attest:
By
------------------------------
Name:
Title:
84
<PAGE> 93
DISTRICT OF COLUMBIA)
: SS.:
COUNTY OF ___________________)
On the _____ day of January, 1997, 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]
85
<PAGE> 94
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 Bank One Trust
Company, N.A., 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 Bank One Trust Company, N.A.;
that the seal affixed to said instrument is Bank One Trust Company, N.A.'s seal;
that it was so affixed by authority of the Board of Directors of Bank One Trust
Company, N.A.; and that he signed his name thereto by like authority.
----------------------------
Notary Public
[NOTARIAL SEAL]
86
<PAGE> 1
EXHIBIT 5
Shea & Gardner
1800 Massachusetts Avenue, N.W.
Washington, D.C. 20036
December 21, 1999
National Consumer Cooperative Bank
1401 Eye Street, NW
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
(collectively, the "Securities Act"), and the public offering by the Company of
up to $350,000,000 of debt securities (the "Debt Securities") and preferred
stock (the "Preferred Stock") (the "Debt Securities" and the "Preferred Stock"
referred to collectively as the "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. 333-90457) (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, Resolutions No. 99-10 and 99-11
adopted by the Board of Directors of the Company (the "Board") at a meeting on
July 31, 1999, and Resolution No. 99-12 adopted by the Board at a meeting on
November 5, 1999 (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.
The opinions expressed below are based on the following assumptions:
(a) The issuance and sale of the Securities will be carried out (i)
on the basis set forth in the Registration Statement, (ii) in
conformity with the Authorizing Resolutions; (iii) in conformity
with the appropriate authorizations, consents or exemptions under
the securities or "blue sky" laws of the various States of the
United States; and (iv) for the Debt Securities, in accordance
with the applicable indenture referred to in the Registration
Statement;
<PAGE> 2
National Consumer Cooperative Bank
December 21, 1999
Page 2
(b) The Registration Statement will become effective pursuant to the
Securities Act;
(c) The indenture referred to in the Registration Statement covering
the subordinated Debt Securities will be duly executed and
delivered by the parties thereto;
(d) The bylaws of the Company will be amended, in accordance with the
Authorizing Resolutions, to authorize the issuance of Preferred
Stock; and
(e) The Board will duly adopt resolutions establishing the terms of
the Preferred Stock, and the issuance and sale of the Preferred
Stock will be carried out in conformity with those resolutions.
Based upon and subject to the foregoing, we are of the opinion that:
(a) The Debt Securities, when properly issued and delivered against
payment therefor in accordance with the foregoing assumptions,
will be legally issued and binding obligations of the Company;
and
(b) The Preferred Stock, when properly issued and delivered against
payment therefor in accordance with the foregoing assumptions,
will be legally issued, fully paid and non-assessable.
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> 1
EXHIBIT 12
NATIONAL CONSUMER COOPERATIVE BANK
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
9 MONTHS ENDED SEPTEMBER 30th
-----------------------------
1999 1998
---- ----
Earnings
<S> <C> <C>
Net Income 13,815,699 7,644,282
Provision for Income Taxes 1,136,679 1,074,328
Fixed Charges 36,504,782 34,442,929
Total Earnings 51,457,160 43,161,539
---------- ----------
Fixed Charges
Interest Expense, Debt 31,969,979 30,637,999
Interest Expense, Deposits 4,178,962 3,465,479
Rentals 355,841 339,451
Total Fixed Charges 36,504,782 34,442,929
---------- ----------
Fixed Charges w/o Deposits 32,325,820 30,977,450
---------- ----------
Ratio of Earnings to Fixed Charges
Including interest on deposits 1.41 1.25
Excluding interest on deposits 1.46 1.28
(1) Rentals is assumed to equal 1/3 of total rentals for the period as shown below:
Rentals 1,067,522 1,018,352
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDING DECEMBER 31st
-------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
Earnings
<S> <C> <C> <C> <C> <C>
Net Income 12,627,625 12,462,355 11,199,198 9,083,236 8,876,862
Provision for Income Taxes 1,453,165 1,375,498 796,914 777,683 584,530
Fixed Charges 46,000,035 42,374,891 35,709,589 31,183,161 21,023,441
Total Earnings 60,080,825 56,212,744 47,705,701 41,044,080 30,484,833
---------- ---------- ---------- ---------- ----------
Fixed Charges
Interest Expense, Debt 40,620,896 37,973,393 31,190,158 27,295,259 18,529,148
Interest Expense, Deposits 4,939,806 3,970,498 4,109,098 3,457,902 2,079,895
Rentals 439,333 431,000 410,333 430,000 414,398
Total Fixed Charges 46,000,035 42,374,891 35,709,589 31,183,161 21,023,441
---------- ---------- ---------- ---------- ----------
Fixed Charges w/o Deposits 41,060,229 38,404,393 31,600,491 27,725,259 18,943,546
---------- ---------- ---------- ---------- ----------
Ratio of Earnings to Fixed Charges
Including interest on deposits 1.31 1.33 1.34 1.32 1.45
Excluding interest on deposits 1.34 1.36 1.38 1.36 1.50
(1) Rentals is assumed to equal 1/3 of total rentals for the period as shown below:
Rentals 1,318,000 1,293,000 1,231,000 1,290,000 1,243,195
</TABLE>
For purposes of computing the consolidated ratios, Earnings consist of net
income before income taxes plus fixed charges (excluding capitalized interest).
Fixed Charges consist of interest on short-term and long-term debt (including
interest related to capitalized leases and capitalized interest) and one-third
of rent expense, which approximates the interest component of such expense. In
addition, where indicated, fixed charges include interest on deposits.
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
WHEREAS, the National Consumer Cooperative Bank, a financial
institution organized under the laws of the United States (the "Bank"), has
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "1933 Act"), a Registration Statement on
Form S-3 (the "Registration Statement"), including a prospectus and exhibits
thereto, as prescribed by the Commission pursuant to the 1933 Act and the rules
and regulations of the Commission promulgated thereunder, in connection with the
registration of certain securities of the Bank; and
WHEREAS, the Bank intends to file with the Commission one or more
amendments (including post-effective amendments) to the Registration Statement
and one or more prospectus supplements related to the Registration Statement;
NOW, THEREFORE, the undersigned hereby constitutes and appoints
Richard L. Reed the undersigned's true and lawful attorney-in-fact and agent,
with full power to act for the undersigned and in the undersigned's name, place
and stead, in any and all capacities (including without limitation in any
capacity on behalf of the Bank), to execute any and all amendments (including
post-effective amendments) to the Registration Statement and any prospectus
supplement or supplements related thereto, as said attorney-in-fact shall deem
necessary or appropriate, together with all documents necessary or incidental in
connection therewith, to file the same or cause the same to be filed with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Said attorney-in-fact shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and confirming the acts
that said attorney-in-fact or his substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 6th day of December, 1999.
/s/ James L. Burns, Jr.
-----------------------------
James L. Burns, Jr.
State of MA
County of Suffolk, ss:
Before me, a notary public, on this day personally appeared James L.
Burns, Jr., known to me to be the person whose name is subscribed to the
foregoing Power of Attorney and acknowledged to me that he executed the same for
purposes and consideration therein expressed.
Given under my hand and seal of this office this 6th day of
December, 1999.
/s/
-------------------------------
Notary Public
My Commission expires 03-31-00
<PAGE> 2
POWER OF ATTORNEY
WHEREAS, the National Consumer Cooperative Bank, a financial
institution organized under the laws of the United States (the "Bank"), has
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "1933 Act"), a Registration Statement on
Form S-3 (the "Registration Statement"), including a prospectus and exhibits
thereto, as prescribed by the Commission pursuant to the 1933 Act and the rules
and regulations of the Commission promulgated thereunder, in connection with the
registration of certain securities of the Bank; and
WHEREAS, the Bank intends to file with the Commission one or more
amendments (including post-effective amendments) to the Registration Statement
and one or more prospectus supplements related to the Registration Statement;
NOW, THEREFORE, the undersigned hereby constitutes and appoints
Richard L. Reed the undersigned's true and lawful attorney-in-fact and agent,
with full power to act for the undersigned and in the undersigned's name, place
and stead, in any and all capacities (including without limitation in any
capacity on behalf of the Bank), to execute any and all amendments (including
post-effective amendments) to the Registration Statement and any prospectus
supplement or supplements related thereto, as said attorney-in-fact shall deem
necessary or appropriate, together with all documents necessary or incidental in
connection therewith, to file the same or cause the same to be filed with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Said attorney-in-fact shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and confirming the acts
that said attorney-in-fact or his substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 6 day of December, 1999.
/s/ Kirby J. Erickson
-------------------------------
Kirby J. Erickson
State of Minnesota
County of Hennepin, ss:
Before me, a notary public, on this day personally appeared Kirby J.
Erickson, known to me to be the person whose name is subscribed to the foregoing
Power of Attorney and acknowledged to me that he executed the same for purposes
and consideration therein expressed.
Given under my hand and seal of this office this 6 day of December,
1999.
/s/
---------------------------------
Notary Public
My Commission expires 1-31-00
<PAGE> 3
POWER OF ATTORNEY
WHEREAS, the National Consumer Cooperative Bank, a financial
institution organized under the laws of the United States (the "Bank"), has
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "1933 Act"), a Registration Statement on
Form S-3 (the "Registration Statement"), including a prospectus and exhibits
thereto, as prescribed by the Commission pursuant to the 1933 Act and the rules
and regulations of the Commission promulgated thereunder, in connection with the
registration of certain securities of the Bank; and
WHEREAS, the Bank intends to file with the Commission one or more
amendments (including post-effective amendments) to the Registration Statement
and one or more prospectus supplements related to the Registration Statement;
NOW, THEREFORE, the undersigned hereby constitutes and appoints
Richard L. Reed the undersigned's true and lawful attorney-in-fact and agent,
with full power to act for the undersigned and in the undersigned's name, place
and stead, in any and all capacities (including without limitation in any
capacity on behalf of the Bank), to execute any and all amendments (including
post-effective amendments) to the Registration Statement and any prospectus
supplement or supplements related thereto, as said attorney-in-fact shall deem
necessary or appropriate, together with all documents necessary or incidental in
connection therewith, to file the same or cause the same to be filed with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Said attorney-in-fact shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and confirming the acts
that said attorney-in-fact or his substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 8 day of December, 1999.
/s/ Harry J. Bowie
-----------------------------
Harry J. Bowie
State of Mississippi
County of Washington, ss:
Before me, a notary public, on this day personally appeared Harry J.
Bowie, known to me to be the person whose name is subscribed to the foregoing
Power of Attorney and acknowledged to me that he executed the same for purposes
and consideration therein expressed.
Given under my hand and seal of this office this 8 day of December,
1999.
/s/
-------------------------------------
Notary Public
My Commission expires Nov. 12, 2000
<PAGE> 4
POWER OF ATTORNEY
WHEREAS, the National Consumer Cooperative Bank, a financial
institution organized under the laws of the United States (the "Bank"), has
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "1933 Act"), a Registration Statement on
Form S-3 (the "Registration Statement"), including a prospectus and exhibits
thereto, as prescribed by the Commission pursuant to the 1933 Act and the rules
and regulations of the Commission promulgated thereunder, in connection with the
registration of certain securities of the Bank; and
WHEREAS, the Bank intends to file with the Commission one or more
amendments (including post-effective amendments) to the Registration Statement
and one or more prospectus supplements related to the Registration Statement;
NOW, THEREFORE, the undersigned hereby constitutes and appoints
Richard L. Reed the undersigned's true and lawful attorney-in-fact and agent,
with full power to act for the undersigned and in the undersigned's name, place
and stead, in any and all capacities (including without limitation in any
capacity on behalf of the Bank), to execute any and all amendments (including
post-effective amendments) to the Registration Statement and any prospectus
supplement or supplements related thereto, as said attorney-in-fact shall deem
necessary or appropriate, together with all documents necessary or incidental in
connection therewith, to file the same or cause the same to be filed with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Said attorney-in-fact shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and confirming the acts
that said attorney-in-fact or his substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 7th day of December, 1999.
/s/ Joseph Cabral
-------------------------
Joseph Cabral
State of California
County of Los Angeles, ss:
Before me, a notary public, on this day personally appeared Joseph
Cabral, known to me to be the person whose name is subscribed to the foregoing
Power of Attorney and acknowledged to me that he executed the same for purposes
and consideration therein expressed.
Given under my hand and seal of this office this 7th day of
December, 1999.
/s/
--------------------------------------
Notary Public
My Commission expires June 14, 2000
<PAGE> 5
POWER OF ATTORNEY
WHEREAS, the National Consumer Cooperative Bank, a financial
institution organized under the laws of the United States (the "Bank"), has
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "1933 Act"), a Registration Statement on
Form S-3 (the "Registration Statement"), including a prospectus and exhibits
thereto, as prescribed by the Commission pursuant to the 1933 Act and the rules
and regulations of the Commission promulgated thereunder, in connection with the
registration of certain securities of the Bank; and
WHEREAS, the Bank intends to file with the Commission one or more
amendments (including post-effective amendments) to the Registration Statement
and one or more prospectus supplements related to the Registration Statement;
NOW, THEREFORE, the undersigned hereby constitutes and appoints
Richard L. Reed the undersigned's true and lawful attorney-in-fact and agent,
with full power to act for the undersigned and in the undersigned's name, place
and stead, in any and all capacities (including without limitation in any
capacity on behalf of the Bank), to execute any and all amendments (including
post-effective amendments) to the Registration Statement and any prospectus
supplement or supplements related thereto, as said attorney-in-fact shall deem
necessary or appropriate, together with all documents necessary or incidental in
connection therewith, to file the same or cause the same to be filed with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Said attorney-in-fact shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and confirming the acts
that said attorney-in-fact or his substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 8 day of December, 1999.
/s/ Eben Hopson, Jr.
-------------------------------
Eben Hopson, Jr.
State of Alaska
County of Barrow, ss:
Before me, a notary public, on this day personally appeared Eben
Hopson, Jr., known to me to be the person whose name is subscribed to the
foregoing Power of Attorney and acknowledged to me that he executed the same for
purposes and consideration therein expressed.
Given under my hand and seal of this office this 8th day of
December, 1999.
/s/
--------------------------------------
Notary Public
My Commission expires 4-12-2002
<PAGE> 6
POWER OF ATTORNEY
WHEREAS, the National Consumer Cooperative Bank, a financial
institution organized under the laws of the United States (the "Bank"), has
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "1933 Act"), a Registration Statement on
Form S-3 (the "Registration Statement"), including a prospectus and exhibits
thereto, as prescribed by the Commission pursuant to the 1933 Act and the rules
and regulations of the Commission promulgated thereunder, in connection with the
registration of certain securities of the Bank; and
WHEREAS, the Bank intends to file with the Commission one or more
amendments (including post-effective amendments) to the Registration Statement
and one or more prospectus supplements related to the Registration Statement;
NOW, THEREFORE, the undersigned hereby constitutes and appoints
Richard L. Reed the undersigned's true and lawful attorney-in-fact and agent,
with full power to act for the undersigned and in the undersigned's name, place
and stead, in any and all capacities (including without limitation in any
capacity on behalf of the Bank), to execute any and all amendments (including
post-effective amendments) to the Registration Statement and any prospectus
supplement or supplements related thereto, as said attorney-in-fact shall deem
necessary or appropriate, together with all documents necessary or incidental in
connection therewith, to file the same or cause the same to be filed with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Said attorney-in-fact shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and confirming the acts
that said attorney-in-fact or his substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 7th day of December, 1999.
/s/ Jackie Jenkins-Scott
------------------------------
Jackie Jenkins-Scott
State of Massachusetts
County of Middlesex, ss:
Before me, a notary public, on this day personally appeared Jackie
Jenkins-Scott, known to me to be the person whose name is subscribed to the
foregoing Power of Attorney and acknowledged to me that he executed the same for
purposes and consideration therein expressed.
Given under my hand and seal of this office this 7th day of
December, 1999.
/s/
------------------------------------
Notary Public
My Commission expires 2006
<PAGE> 7
POWER OF ATTORNEY
WHEREAS, the National Consumer Cooperative Bank, a financial
institution organized under the laws of the United States (the "Bank"), has
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "1933 Act"), a Registration Statement on
Form S-3 (the "Registration Statement"), including a prospectus and exhibits
thereto, as prescribed by the Commission pursuant to the 1933 Act and the rules
and regulations of the Commission promulgated thereunder, in connection with the
registration of certain securities of the Bank; and
WHEREAS, the Bank intends to file with the Commission one or more
amendments (including post-effective amendments) to the Registration Statement
and one or more prospectus supplements related to the Registration Statement;
NOW, THEREFORE, the undersigned hereby constitutes and appoints
Richard L. Reed the undersigned's true and lawful attorney-in-fact and agent,
with full power to act for the undersigned and in the undersigned's name, place
and stead, in any and all capacities (including without limitation in any
capacity on behalf of the Bank), to execute any and all amendments (including
post-effective amendments) to the Registration Statement and any prospectus
supplement or supplements related thereto, as said attorney-in-fact shall deem
necessary or appropriate, together with all documents necessary or incidental in
connection therewith, to file the same or cause the same to be filed with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Said attorney-in-fact shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and confirming the acts
that said attorney-in-fact or his substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 7th day of December, 1999.
/s/ Marilyn J. McQuaide
--------------------------------
Marilyn J. McQuaide
State of Vermont
County of Windham, ss:
Before me, a notary public, on this day personally appeared Marilyn
J. McQuaide, known to me to be the person whose name is subscribed to the
foregoing Power of Attorney and acknowledged to me that he executed the same for
purposes and consideration therein expressed.
Given under my hand and seal of this office this 7th day of
December, 1999.
/s/
--------------------------------------
Notary Public
My Commission expires 02-10-2003
<PAGE> 8
POWER OF ATTORNEY
WHEREAS, the National Consumer Cooperative Bank, a financial
institution organized under the laws of the United States (the "Bank"), has
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "1933 Act"), a Registration Statement on
Form S-3 (the "Registration Statement"), including a prospectus and exhibits
thereto, as prescribed by the Commission pursuant to the 1933 Act and the rules
and regulations of the Commission promulgated thereunder, in connection with the
registration of certain securities of the Bank; and
WHEREAS, the Bank intends to file with the Commission one or more
amendments (including post-effective amendments) to the Registration Statement
and one or more prospectus supplements related to the Registration Statement;
NOW, THEREFORE, the undersigned hereby constitutes and appoints
Richard L. Reed the undersigned's true and lawful attorney-in-fact and agent,
with full power to act for the undersigned and in the undersigned's name, place
and stead, in any and all capacities (including without limitation in any
capacity on behalf of the Bank), to execute any and all amendments (including
post-effective amendments) to the Registration Statement and any prospectus
supplement or supplements related thereto, as said attorney-in-fact shall deem
necessary or appropriate, together with all documents necessary or incidental in
connection therewith, to file the same or cause the same to be filed with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Said attorney-in-fact shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and confirming the acts
that said attorney-in-fact or his substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 7th day of December, 1999.
/s/ Michael J. Mercer
---------------------------------
Michael J. Mercer
State of Georgia
County of Gwinnett, ss:
Before me, a notary public, on this day personally appeared Michael
J. Mercer, known to me to be the person whose name is subscribed to the
foregoing Power of Attorney and acknowledged to me that he executed the same for
purposes and consideration therein expressed.
Given under my hand and seal of this office this 7th day of
December, 1999.
/s/
---------------------------------------
Notary Public
My Commission expires__________
<PAGE> 9
POWER OF ATTORNEY
WHEREAS, the National Consumer Cooperative Bank, a financial
institution organized under the laws of the United States (the "Bank"), has
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "1933 Act"), a Registration Statement on
Form S-3 (the "Registration Statement"), including a prospectus and exhibits
thereto, as prescribed by the Commission pursuant to the 1933 Act and the rules
and regulations of the Commission promulgated thereunder, in connection with the
registration of certain securities of the Bank; and
WHEREAS, the Bank intends to file with the Commission one or more
amendments (including post-effective amendments) to the Registration Statement
and one or more prospectus supplements related to the Registration Statement;
NOW, THEREFORE, the undersigned hereby constitutes and appoints
Richard L. Reed the undersigned's true and lawful attorney-in-fact and agent,
with full power to act for the undersigned and in the undersigned's name, place
and stead, in any and all capacities (including without limitation in any
capacity on behalf of the Bank), to execute any and all amendments (including
post-effective amendments) to the Registration Statement and any prospectus
supplement or supplements related thereto, as said attorney-in-fact shall deem
necessary or appropriate, together with all documents necessary or incidental in
connection therewith, to file the same or cause the same to be filed with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Said attorney-in-fact shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and confirming the acts
that said attorney-in-fact or his substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 13 day of December, 1999.
/s/ Alex N. Miller
----------------------------
Alex N. Miller
State of Georgia
County of Fulton, ss:
Before me, a notary public, on this day personally appeared Alex N.
Miller, known to me to be the person whose name is subscribed to the foregoing
Power of Attorney and acknowledged to me that he executed the same for purposes
and consideration therein expressed.
Given under my hand and seal of this office this 13 day of December,
1999.
/s/
----------------------------------
Notary Public
My Commission expires 2/23/2003
<PAGE> 10
POWER OF ATTORNEY
WHEREAS, the National Consumer Cooperative Bank, a financial
institution organized under the laws of the United States (the "Bank"), has
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "1933 Act"), a Registration Statement on
Form S-3 (the "Registration Statement"), including a prospectus and exhibits
thereto, as prescribed by the Commission pursuant to the 1933 Act and the rules
and regulations of the Commission promulgated thereunder, in connection with the
registration of certain securities of the Bank; and
WHEREAS, the Bank intends to file with the Commission one or more
amendments (including post-effective amendments) to the Registration Statement
and one or more prospectus supplements related to the Registration Statement;
NOW, THEREFORE, the undersigned hereby constitutes and appoints
Richard L. Reed the undersigned's true and lawful attorney-in-fact and agent,
with full power to act for the undersigned and in the undersigned's name, place
and stead, in any and all capacities (including without limitation in any
capacity on behalf of the Bank), to execute any and all amendments (including
post-effective amendments) to the Registration Statement and any prospectus
supplement or supplements related thereto, as said attorney-in-fact shall deem
necessary or appropriate, together with all documents necessary or incidental in
connection therewith, to file the same or cause the same to be filed with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Said attorney-in-fact shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and confirming the acts
that said attorney-in-fact or his substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 20 day of December, 1999.
/s/ Alfred A. Plamann
---------------------------------
Alfred A. Plamann
State of California
County of Los Angeles, ss:
Before me, a notary public, on this day personally appeared Alfred
A. Plamann, known to me to be the person whose name is subscribed to the
foregoing Power of Attorney and acknowledged to me that he executed the same for
purposes and consideration therein expressed.
Given under my hand and seal of this office this 20 day of December,
1999.
/s/
--------------------------------------------
Notary Public
My Commission expires April 26, 2002
<PAGE> 11
POWER OF ATTORNEY
WHEREAS, the National Consumer Cooperative Bank, a financial
institution organized under the laws of the United States (the "Bank"), has
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "1933 Act"), a Registration Statement on
Form S-3 (the "Registration Statement"), including a prospectus and exhibits
thereto, as prescribed by the Commission pursuant to the 1933 Act and the rules
and regulations of the Commission promulgated thereunder, in connection with the
registration of certain securities of the Bank; and
WHEREAS, the Bank intends to file with the Commission one or more
amendments (including post-effective amendments) to the Registration Statement
and one or more prospectus supplements related to the Registration Statement;
NOW, THEREFORE, the undersigned hereby constitutes and appoints
Richard L. Reed the undersigned's true and lawful attorney-in-fact and agent,
with full power to act for the undersigned and in the undersigned's name, place
and stead, in any and all capacities (including without limitation in any
capacity on behalf of the Bank), to execute any and all amendments (including
post-effective amendments) to the Registration Statement and any prospectus
supplement or supplements related thereto, as said attorney-in-fact shall deem
necessary or appropriate, together with all documents necessary or incidental in
connection therewith, to file the same or cause the same to be filed with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Said attorney-in-fact shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and confirming the acts
that said attorney-in-fact or his substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 6th day of December, 1999.
/s/ Stuart M. Saft
--------------------------
Stuart M. Saft
State of New York
County of New York, ss:
Before me, a notary public, on this day personally appeared Stuart
M. Saft, known to me to be the person whose name is subscribed to the foregoing
Power of Attorney and acknowledged to me that he executed the same for purposes
and consideration therein expressed.
Given under my hand and seal of this office this 6th day of
December, 1999.
/s/
--------------------------------------
Notary Public
My Commission expires _______
<PAGE> 12
POWER OF ATTORNEY
WHEREAS, the National Consumer Cooperative Bank, a financial
institution organized under the laws of the United States (the "Bank"), has
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "1933 Act"), a Registration Statement on
Form S-3 (the "Registration Statement"), including a prospectus and exhibits
thereto, as prescribed by the Commission pursuant to the 1933 Act and the rules
and regulations of the Commission promulgated thereunder, in connection with the
registration of certain securities of the Bank; and
WHEREAS, the Bank intends to file with the Commission one or more
amendments (including post-effective amendments) to the Registration Statement
and one or more prospectus supplements related to the Registration Statement;
NOW, THEREFORE, the undersigned hereby constitutes and appoints
Richard L. Reed the undersigned's true and lawful attorney-in-fact and agent,
with full power to act for the undersigned and in the undersigned's name, place
and stead, in any and all capacities (including without limitation in any
capacity on behalf of the Bank), to execute any and all amendments (including
post-effective amendments) to the Registration Statement and any prospectus
supplement or supplements related thereto, as said attorney-in-fact shall deem
necessary or appropriate, together with all documents necessary or incidental in
connection therewith, to file the same or cause the same to be filed with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Said attorney-in-fact shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and confirming the acts
that said attorney-in-fact or his substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 7th day of December, 1999.
/s/ Sheila A. Smith
-----------------------------
Sheila A. Smith
State of Illinois
County of Cook, ss:
Before me, a notary public, on this day personally appeared Sheila
A. Smith, known to me to be the person whose name is subscribed to the foregoing
Power of Attorney and acknowledged to me that he executed the same for purposes
and consideration therein expressed.
Given under my hand and seal of this office this 7th day of
December, 1999.
/s/
------------------------------------
Notary Public
My Commission expires 7/6/02
<PAGE> 13
POWER OF ATTORNEY
WHEREAS, the National Consumer Cooperative Bank, a financial
institution organized under the laws of the United States (the "Bank"), has
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "1933 Act"), a Registration Statement on
Form S-3 (the "Registration Statement"), including a prospectus and exhibits
thereto, as prescribed by the Commission pursuant to the 1933 Act and the rules
and regulations of the Commission promulgated thereunder, in connection with the
registration of certain securities of the Bank; and
WHEREAS, the Bank intends to file with the Commission one or more
amendments (including post-effective amendments) to the Registration Statement
and one or more prospectus supplements related to the Registration Statement;
NOW, THEREFORE, the undersigned hereby constitutes and appoints
Richard L. Reed the undersigned's true and lawful attorney-in-fact and agent,
with full power to act for the undersigned and in the undersigned's name, place
and stead, in any and all capacities (including without limitation in any
capacity on behalf of the Bank), to execute any and all amendments (including
post-effective amendments) to the Registration Statement and any prospectus
supplement or supplements related thereto, as said attorney-in-fact shall deem
necessary or appropriate, together with all documents necessary or incidental in
connection therewith, to file the same or cause the same to be filed with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Said attorney-in-fact shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and confirming the acts
that said attorney-in-fact or his substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 7th day of December, 1999.
/s/ Peter C. Young
------------------------------
Peter C. Young
State of Connecticut
County of New Haven, ss: Hamden
Before me, a notary public, on this day personally appeared Peter C.
Young, known to me to be the person whose name is subscribed to the foregoing
Power of Attorney and acknowledged to me that he executed the same for purposes
and consideration therein expressed.
Given under my hand and seal of this office this 7th day of
December, 1999.
/s/
-------------------------------------------
Notary Public
My Commission expires 5/31/01
<PAGE> 14
POWER OF ATTORNEY
WHEREAS, the National Consumer Cooperative Bank, a financial
institution organized under the laws of the United States (the "Bank"), has
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "1933 Act"), a Registration Statement on
Form S-3 (the "Registration Statement"), including a prospectus and exhibits
thereto, as prescribed by the Commission pursuant to the 1933 Act and the rules
and regulations of the Commission promulgated thereunder, in connection with the
registration of certain securities of the Bank; and
WHEREAS, the Bank intends to file with the Commission one or more
amendments (including post-effective amendments) to the Registration Statement
and one or more prospectus supplements related to the Registration Statement;
NOW, THEREFORE, the undersigned hereby constitutes and appoints
Richard L. Reed the undersigned's true and lawful attorney-in-fact and agent,
with full power to act for the undersigned and in the undersigned's name, place
and stead, in any and all capacities (including without limitation in any
capacity on behalf of the Bank), to execute any and all amendments (including
post-effective amendments) to the Registration Statement and any prospectus
supplement or supplements related thereto, as said attorney-in-fact shall deem
necessary or appropriate, together with all documents necessary or incidental in
connection therewith, to file the same or cause the same to be filed with the
Commission and to appear before the Commission in connection with any matter
relating thereto. Said attorney-in-fact shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and confirming the acts
that said attorney-in-fact or his substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 16th day of December, 1999.
/s/ Thomas K. Zaucha
-------------------------------
Thomas K. Zaucha
State of Virginia
County of Fairfax, ss:
Before me, a notary public, on this day personally appeared Thomas
K. Zaucha, known to me to be the person whose name is subscribed to the
foregoing Power of Attorney and acknowledged to me that he executed the same for
purposes and consideration therein expressed.
Given under my hand and seal of this office this 16th day of
December, 1999.
/s/
-----------------------------------------
Notary Public
My Commission expires 12/30/2003
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------
BANK ONE TRUST COMPANY, N.A.
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, N.A.
100 EAST BROAD STREET
COLUMBUS, OHIO 43271-0181
ATTN: LINDA J. PATTERSON, SENIOR MANAGING DIRECTOR, (614) 248-5193
(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., SUITE 700
WASHINGTON, D.C. 20005
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
<PAGE> 2
(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 certificate of authority of the trustee to
commence business.
3. A copy of the authorization of the trustee to exercise
corporate trust powers.
4. A copy of the existing by-laws of the trustee.
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the
Act.
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, NA, 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 2nd day of December,
1999.
BANK ONE TRUST COMPANY, NA,
TRUSTEE
BY /s/ SANDRA L. CARUBA
---------------------
SANDRA L. CARUBA
VICE PRESIDENT
<PAGE> 4
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
BANK ONE TRUST COMPANY, N.A.
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY, N.A.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less than
five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii)
the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of Directors
may not increase the number of directors between meetings of shareholders to a
number which: (1) exceeds by more than two the number of directors last elected
by shareholders where the number was 15 or less; or (2) exceeds by more than
four the number of directors last elected by shareholders where the number was
16 or more, but in no event shall the number of directors exceed 25.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
<PAGE> 5
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or special meeting. Honorary or
advisory directors shall not be counted to determine the number of directors of
the Association or the presence of a quorum in connection with any board action,
and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It shall
be held at the main office or any other convenient place the Board of Directors
may designate, on the day of each year specified therefor in the Bylaws or, if
that day falls on a legal holiday in the state in which the Association is
located, on the next following banking day. If no election is held on the day
fixed or in the event of a legal holiday on the following banking day, an
election may be held on any subsequent day within 60 days of the day fixed, to
be designated by the Board of Directors or, if the directors fail to fix the
day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time
<PAGE> 6
determine and at such price as the Board of Directors may from time to time fix.
Unless otherwise specified in the Articles of Association or required by law,
(1) all matters requiring shareholder action, including amendments to the
Articles of Association, must be approved by shareholders owning a majority
voting interest in the outstanding voting stock, and (2) each shareholder shall
be entitled to one vote per share.
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or more
classes or series in the same or a substantially similar way, all the classes or
series so affected must vote together as a single voting group on the proposed
amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be issued
as share dividends in respect of a class or series of stock if approved by a
majority of the votes entitled to be cast by the class or series to be issued
unless there are no outstanding shares of the class or series to be issued.
Unless otherwise provided by the Board of Directors, the record date for
determining shareholders entitled to a share dividend shall be the date the
Board of Directors authorizes the share dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive rights,
a stock dividend, consolidation or merger, reverse stock split or otherwise, the
Association may: (a) issue fractional shares or; (b) in lieu of the issuance of
fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the Association's stock,
make reasonable arrangements to provide the shareholder with an opportunity to
realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the
fraction to the shareholder; or (e) sell full shares representing all the
fractions at public auction or to the highest bidder after having solicited and
received sealed bids from at least three licensed stock brokers, and distribute
the proceeds pro rata to shareholders who otherwise would be entitled to the
fractional shares. The holder of a fractional share is entitled to exercise the
rights for shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Association upon liquidation, in proportion
to the fractional interest. The holder of script or warrants is not entitled to
any of these rights unless the script or warrants explicitly provide for such
rights. The script or warrants may be subject to such additional conditions as:
(1) that the script or warrants will become void if not exchanged for full
shares before a specified date; and (2) that the shares for which the script or
warrants are exchangeable may be sold at the option of the Association and the
proceeds paid to scriptholders.
<PAGE> 7
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated, which
may be issued by the Association without the approval of shareholders, do not
carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
SIXTH. The Board of Directors shall appoint one of its members president of this
Association, and one of its members chairperson of the board and shall have the
power to appoint one or more vice presidents, a secretary who shall keep minutes
of the directors' and shareholders' meetings and be responsible for
authenticating the records of the Association, and such other officers and
employees as may be required to transact the business of this Association. A
duly appointed officer may appoint one or more officers or assistant officers if
authorized by the Board of Directors in accordance with the Bylaws. The Board of
Directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for its
duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its officers
and employees upon reasonable terms and conditions consistent with
applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of the
Association shall be made, provided that nothing herein shall restrict the
power of shareholders to increase or decrease the capital of the
association in accordance with law, and nothing shall raise or lower from
two-thirds the percentage for shareholder approval to increase or reduce
the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial Bylaws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of the
Association.
(10) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a Board of Directors to
perform.
<PAGE> 8
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus, State
of Ohio, but not more than thirty miles beyond such limits, with the affirmative
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a certificate of approval from the Comptroller of the Currency.
The Board of Directors shall have the power to establish or change the location
of any branch or branches of the Association to any other location permitted
under applicable law without the approval of the shareholders, subject to
approval by the Office of the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
nonbranch office or facility of the Association without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided by
the Bylaws or the laws of the United States, or waived by shareholders, a notice
of the time, place, and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association. Unless otherwise provided by the Bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association or
of any other corporation which he served as a Director, officer or employee at
the request of the Association as part of his regularly assigned duties may be
indemnified by the Association in accordance with the provisions of this Article
against all liability (including, without limitation, judgments, fines,
penalties, and settlements) and all reasonable expenses (including, without
limitation, attorneys' fees and investigative expenses) that may be incurred or
paid by him in connection with any claim, action, suit or proceeding, whether
civil, criminal or administrative (all referred to hereafter in this Article as
"Claims") or in connection with any appeal relating thereto in which he may
become involved as a party or otherwise or with which he may be threatened by
reason of his being or having been a Director, officer or employee of the
Association or such other corporation, or by reason of any action taken or
omitted by him in his capacity as such Director, officer or employee, whether or
not he continues to be such at the time such liability or expenses are incurred;
provided that nothing contained in this Article shall be construed to permit
indemnification of any such person who is adjudged guilty of, or liable for,
willful misconduct, gross neglect of duty or criminal acts, unless, at the time
such indemnification is sought, such indemnification in such instance is
permissible under applicable law and regulations, including published rulings of
the Comptroller of the Currency or other appropriate
<PAGE> 9
supervisory or regulatory authority; and provided further that there shall be no
indemnification of Directors, officers, or employees against expenses,
penalties, or other payments incurred in an administrative proceeding or action
instituted by an appropriate regulatory agency which proceeding or action
results in a final order assessing civil money penalties or requiring
affirmative action by an individual or individuals in the form of payments to
the Association.
Every person who may be indemnified under the provisions of this Article and who
has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole discretion
of the Board of Directors and shall be made only if the Board of Directors or
the Executive Committee acting by a quorum consisting of Directors who are not
parties to such Claim shall find or if independent legal counsel (who may be the
regular counsel of the Association) selected by the Board of Directors or
Executive Committee whether or not a disinterested quorum exists shall render
their opinion that in view of all of the circumstances then surrounding the
Claim, such indemnification is equitable and in the best interests of the
Association. Among the circumstances to be taken into consideration in arriving
at such a finding or opinion is the existence or non-existence of a contract of
insurance or indemnity under which the Association would be wholly or partially
reimbursed for such indemnification, but the existence or non-existence of such
insurance is not the sole circumstance to be considered nor shall it be wholly
determinative of whether such indemnification shall be made. In addition to such
finding or opinion, no indemnification under this Article shall be made unless
the Board of Directors or the Executive Committee acting by a quorum consisting
of Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that the Directors, officer or employee
acted in good faith in what he reasonably believed to be the best interests of
the Association or such other corporation and further in the case of any
criminal action or proceeding, that the Director, officer or employee reasonably
believed his conduct to be lawful. Determination of any Claim by judgment
adverse to a Director, officer or employee by settlement with or without Court
approval or conviction upon a plea of guilty or of nolo contendere or its
equivalent shall not create a presumption that a Director, officer or employee
failed to meet the standards of conduct set forth in this Article. Expenses
incurred with respect to any Claim may be advanced by the Association prior to
the final disposition thereof upon receipt of an undertaking satisfactory to the
Association by or on behalf of the recipient to repay such amount unless it is
ultimately determined that he is entitled to indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be conclusively presumed to be
doing so in reliance upon the right of indemnification provided for in this
Article.
<PAGE> 10
ELEVENTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's Board of Directors may propose one or
more amendments to the Articles of Association for submission to the
shareholders.
<PAGE> 11
EXHIBIT 2
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter
No. 16235) is a National Banking Association formed under the laws of the United
States and is authorized thereunder to transact the business of banking on the
date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
15th day of September, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
<PAGE> 12
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter
No. 16235) was granted, under the hand and seal of the Comptroller, the right to
act in all fiduciary capacities authorized under the provisions of the Act of
Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the
authority so granted remains in full force and effect on the date of this
Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
15th day of September, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
<PAGE> 13
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, N.A.
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock of
the Bank. Notice of any special meeting of the shareholders called by the Board
of Directors, stating the time, place and purpose of the meeting, shall be given
by or under the direction of the Secretary, or such other officer as is
designated by the Chief Executive Officer, by first-class mail, postage prepaid,
to all shareholders of record of the Bank at their respective addresses as shown
upon the books of the Bank mailed not less than ten days prior to the date fixed
for such meeting. Any special meeting of shareholders shall be conducted and its
proceedings recorded in the manner prescribed in these By-Laws for annual
meetings of shareholders.
<PAGE> 14
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer shall notify the
Directors-elect of their election and to meet forthwith for the organization of
the new Board of Directors. The minutes of the meeting shall be signed by the
presiding officer and the secretary designated for the meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many as
three shareholders to be judges of the election, who shall hold and conduct the
same, and who shall, after the election has been held, notify, in writing over
their signatures, the secretary of the meeting of shareholders of the result
thereof and the names of the Directors elected; provided, however, that upon
failure for any reason of any judge or judges of election, so appointed by the
Directors, to serve, the presiding officer of the meeting shall appoint other
shareholders or their proxies to fill the vacancies. The judges of election, at
the request of the chairman of the meeting, shall act as tellers of any other
vote by ballot taken at such meeting, and shall notify, in writing over their
signature, the secretary of the Board of Directors of the result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in such shareholder's name for
as many persons as there are Directors to be elected, or to cumulate such shares
as provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in such shareholder's name. Shareholders may vote by proxy duly
authorized in writing. All proxies used at the annual meeting shall be secured
for that meeting only, or any adjournment thereof, and shall be dated, if not
dated by the shareholder, as of the date of the receipt thereof. No officer or
employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
<PAGE> 15
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year
or until their successors are elected and qualified. Any vacancy in the Board
shall be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding officer of the annual meeting. If at the time fixed for
such meeting there is no quorum present, the Directors in attendance may adjourn
from time to time until a quorum is obtained. A majority of the number of
Directors elected by the shareholders shall constitute a quorum for the
transaction of business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief Executive Officer, or President may
fix. Whenever a quorum is not present, the Directors in attendance shall adjourn
the meeting to a time not later than the date fixed by the By-Laws for the next
succeeding regular meeting of the Board. Members of the Board of Directors may
participate in such meetings through use of conference telephone or similar
communications equipment, so long as all members participating in such meetings
can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors
shall be held at the call of the Chairman of the Board, Chief Executive Officer,
or President, or at the request of two or more Directors. Any special meeting
may be held at such place and at such time as may be fixed in the call. Written
or oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall receive
such fees for attendance at Board and Board committee meetings and such fees for
service as a Director, irrespective of meeting attendance, as from time to time
are fixed by resolution of the Board; provided, however, that payment hereunder
shall not be made to a Director for meetings attended and/or Board service which
are not for the Bank's sole
<PAGE> 16
benefit and which are concurrent and duplicative with meetings attended or Board
service for an affiliate of the Bank for which the Director receives payment;
and provided further that fees hereunder shall not be paid in the case of any
Director in the regular employment of the Bank or of one of its affiliates. Each
member of the Board of Directors, whether or not such Director is in the regular
employment of the Bank or of one of its affiliates, shall be reimbursed for
travel expenses incident to attendance at Board and Board committee meetings.
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that may
lawfully be delegated. The Executive Committee shall consist of at least three
Board members, one of whom shall be the Chairman of the Board, Chief Executive
Officer or the President. The other members of the Executive Committee shall be
appointed by the Chairman of the Board, the Chief Executive Officer, or the
President, with the approval of the Board, and who shall continue as members of
the Executive Committee until their successors are appointed, provided, however,
that any member of the Executive Committee may be removed by the Board upon a
majority vote thereof at any regular or special meeting of the Board. The
Chairman, Chief Executive Officer, or President shall fill any vacancy in the
Executive Committee by the appointment of another Director, subject to the
approval of the Board of Directors. The Executive Committee shall meet at the
call of the Chairman, Chief Executive Officer, or President or any two members
thereof at such time or times and place as may be designated. In the event of
the absence of any member or members of the Executive Committee, the presiding
member may appoint a member or members of the Board to fill the place or places
of such absent member or members to serve during such absence. Two members of
the Executive Committee shall constitute a quorum. When neither the Chairman of
the Board, the Chief Executive Officer, nor President are present, the Executive
Committee shall appoint a presiding officer. The Executive Committee shall
report its proceedings and the action taken by it to the Board of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such
special committees from time to time as are in its judgment necessary in the
interest of the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The executive officers of the Bank shall include a Chairman of the Board,
Chief Executive Officer, President, Chief Financial Officer, Secretary, Security
Officer, and may include one or more Senior Managing Directors or Managing
Directors. The Chairman of the Board, Chief Executive Officer, President, any
Senior Managing Director, any Managing Director, Chief Financial Officer,
Secretary, and Security Officer shall be elected by the Board. The Chairman of
the Board, Chief Executive Officer, and the President shall be elected by the
Board from their own number. Such officers as the Board shall elect from their
own number shall hold office from the date of their election as officers until
the organization meeting of the Board of Directors following the next annual
meeting of shareholders, provided, however, that such officers may be relieved
of their duties at any time by action of the Board of Directors, in which event
all the powers incident to their office shall immediately terminate. The
Chairman of the Board, Chief Executive Officer, or the President shall preside
at all meetings of shareholders and meetings of the Board of Directors.
<PAGE> 17
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and such other persons in the employment of the Bank
who, pursuant to authorization by a duly authorized officer of the Bank, perform
management functions and have management responsibilities. Any two or more
offices may be held by the same person except that no person shall hold the
office of Chairman of the Board, Chief Executive Officer and/or President and at
the same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or these
By-Laws, the Board assigns to the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and/or each of their respective designees the authority
to control all personnel, including elected and appointed officers and employees
of the Bank, to employ or direct the employment of such officers and employees
as he or she may deem necessary, including the fixing of salaries and the
dismissal of such officers and employees at pleasure, and to define and
prescribe the duties and responsibilities of all officers and employees of the
Bank, subject to such further limitations and directions as he or she may from
time to time deem appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is authorized
in writing by the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer may appoint persons other than officers who are in employment
of the Bank to serve in management positions and in connection therewith, the
appointing officer may assign such title, salary, responsibilities and functions
as are deemed appropriate, provided, however, that nothing contained herein
shall be construed as placing any limitation on the authority of the Chairman of
the Board, the Chief Executive Officer, the President, any Senior Managing
Director, any Managing Director, or the Chief Financial Officer as provided in
this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a Managing
Director, such officer as is designated by the Senior Managing Director or the
Managing Director shall be vested with all the powers and perform all the duties
of the Senior Managing Director or the Managing Director as defined by these
By-Laws.
<PAGE> 18
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members who shall be capable and
experienced officers of the Bank appointed from time to time by the Managing
Director and who shall continue as members of the Investment Management and
Trust Committee until their successors are appointed, provided, however, that
any member of the Investment Management and Trust Committee may be removed by
the Managing Director as provided in this and other sections of these By-Laws.
The Managing Director shall fill any vacancy in the Investment Management and
Trust Committee by the appointment of another capable and experienced officer of
the Bank. Each Investment Management and Trust Committee shall meet at such
date, time and place as the Managing Director shall fix. In the event of the
absence of any member or members of the Investment Management and Trust
Committee, the Managing Director may, in his or her discretion, appoint another
officer of the Bank to fill the place or places of such absent member or members
to serve during such absence. A majority of each Investment Management and Trust
Committee shall constitute a quorum. Each Investment Management and Trust
Committee shall carry out the policies of the Bank, as adopted by the Board of
Directors, which shall be formulated and executed in accordance with State and
Federal Law, Regulations of the Comptroller of the Currency, and sound fiduciary
principles. In carrying out the policies of the Bank, each Investment Management
and Trust Committee is hereby authorized to establish management teams whose
duties and responsibilities shall be specifically set forth in the policies of
the Bank. Each such management team shall report such proceedings and the
actions taken thereby to the Investment Management and Trust Committee. Each
Managing Director shall then report such proceedings and the actions taken
thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the fiduciary
powers granted to this Bank under the provisions of Federal Law and Regulations
of the Comptroller of the Currency, the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Managing Directors, the Managing
Directors, the Chief Financial Officer, and those officers so designated and
authorized by the Chairman of the Board, the Chief Executive Officer, the
President, the Senior Managing Directors, the Managing Directors, or the Chief
Financial Officer are authorized for and on behalf of the Bank, and to the
extent permitted by law, to make loans and discounts; to purchase or acquire
drafts, notes, stocks, bonds, and other securities for investment of funds held
by the Bank; to execute and purchase acceptances; to appoint, empower and direct
all necessary agents and attorneys; to sign and give any notice required to be
given; to demand payment and/or to declare due for any default any debt or
obligation due or payable to the Bank upon demand or authorized to be declared
due; to foreclose any mortgages; to exercise any option, privilege or election
to forfeit, terminate, extend or renew any lease; to authorize and direct any
proceedings for the collection of any money or for the enforcement of any right
or obligation; to adjust, settle and compromise all claims of every kind and
description in favor of or against the Bank, and to give receipts, releases and
discharges therefor; to borrow money and in connection therewith to make,
execute and deliver notes, bonds or other evidences of indebtedness; to pledge
or hypothecate any securities or any stocks, bonds, notes or any property real
or personal held or owned by the Bank, or to rediscount any notes or other
obligations held or owned by the Bank, whenever in his or her judgment it is
reasonably necessary for the operation of the Bank; and in furtherance of and in
addition to the powers hereinabove set forth to do all such acts and to take all
such proceedings as in his or her judgment are necessary and incidental to the
operation of the Bank.
<PAGE> 19
SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Secretary as
Assistant Secretary to perform the duties of the Secretary.
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management staff
or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness (including
the assignment and redemption of registered United States obligations) and all
other forms of intangible property now or hereafter owned by or standing in the
name of the Bank, or its nominee, or held by the Bank as collateral security, or
standing in the name of the Bank, or its nominee, in any fiduciary capacity or
in the name of any principal for whom this Bank may now or hereafter be acting
under a power of attorney or as agent, and to execute and deliver such partial
releases from any discharges or assignments of mortgages and assignments or
surrender of insurance policies, deeds, contracts, assignments or other papers
or documents as may be appropriate in the circumstances now or hereafter held by
the Bank in its own name, in a fiduciary capacity, or owned by any principal for
whom this Bank may now or hereafter be acting under a power of attorney or as
agent; provided, however, that, when necessary, the signature of any such person
shall be attested or witnessed in each case by another officer of the Bank. Any
member of the Bank's management staff or any employee of the Bank designated as
an officer on the Bank's payroll system is hereby authorized for and on behalf
of the Bank to execute any indemnity and fidelity bonds, trust agreements,
proxies or other papers or documents of like or different character necessary,
desirable or incidental to the appointment of the Bank in any fiduciary
capacity, the conduct of its business in any fiduciary capacity, or the conduct
of its other banking business; to sign and issue checks, drafts, orders for the
payment of money and certificates of deposit; to sign and endorse bills of
exchange, to sign and countersign foreign and domestic letters of credit, to
receive and receipt for payments of principal, interest, dividends, rents, fees
and payments of every kind and description paid to the Bank, to sign receipts
for money or other property acquired by or entrusted to the Bank, to guarantee
the genuineness of signatures on assignments of stocks, bonds or other
securities, to sign certifications of checks, to endorse and deliver checks,
drafts, warrants, bills, notes, certificates of deposit and acceptances in all
business transactions of the Bank; also to foreclose any mortgage, to execute
and deliver receipts for any money or property; also to sign stock certificates
for and on behalf of this Bank as transfer agent or registrar, and to
authenticate bonds, debentures, land or lease trust certificates or other forms
of security issued pursuant to any indenture under which this Bank now or
hereafter is acting as trustee or in any other fiduciary capacity; to execute
and deliver various forms of documents or agreements necessary to effectuate
certain investment strategies for various fiduciary or custody customers of the
Bank, including, without limitation, exchange funds, options, both listed and
over-the-counter, commodities trading, futures trading, hedge funds, limited
partnerships, venture capital funds, swap or collar transactions and other
similar investment vehicles for which the Bank now or in the future may deem
appropriate for investment of fiduciary customers or in which non-fiduciary
customers may direct investment by the Bank.
<PAGE> 20
Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to time
to appoint officers of the Bank as Vice President for the sole purpose of
executing releases or other documents incidental to the conduct of the Bank's
business in any fiduciary capacity where required by state law or the governing
document. In addition, other persons in the employment of the Bank or its
affiliates may be authorized by the Chief Executive Officer, Chairman of the
Board, President, Senior Managing Directors, Managing Directors, or Chief
Financial Officer to perform acts and to execute the documents described in the
paragraph above, subject, however, to such limitations and conditions as are
contained in the authorization given to such person.
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank
shall be bonded for the honest and faithful performance of their duties for
such amount as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the Chief Executive Officer, or the President (which signature may be
engraved, printed or impressed), and shall be signed manually by the Secretary,
or any other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has been
placed upon such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Bank with the same effect as if
such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its face
that stock represented thereby is transferable only upon the books of the Bank
when properly endorsed and shall recite such other information as is required by
law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall
be transferable only upon the stock transfer books of the Bank and, except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of an affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the Chief Executive Officer, or the President. The Board of Directors or
the Chairman of the Board, Chief Executive Officer, or the President may
authorize the issuance of a new certificate therefor without the furnishing of
indemnity. Stock transfer books, in which all transfers of stock shall be
recorded, shall be provided. The stock transfer books may be closed for a
reasonable period and under such conditions as the Board of Directors may at any
time determine, for any meeting of shareholders, the payment of dividends or any
other lawful purpose. In lieu of closing the transfer books, the Board of
Directors may, in its discretion, fix a record date and hour constituting a
reasonable period prior to the day designated for the holding of any meeting of
the shareholders or the day appointed for the payment of any dividend, or for
any other purpose at the time as of which shareholders entitled to notice of and
to vote at any such meeting or to receive such dividend or to be treated as
shareholders for such other purpose shall be determined, and only shareholders
of record at such time shall be entitled to notice of or to vote at such meeting
or to receive such dividends or to be treated as shareholders for such other
purpose.
<PAGE> 21
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with "SEAL"
in the center, and the name "BANK ONE TRUST COMPANY, NA" located clockwise
around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the Articles
of Association, the returns of judges of elections, the By-Laws and any
amendments thereto, the proceedings of all regular and special meetings of the
shareholders and of the Board of Directors, and reports of the committees of the
Board of Directors shall be recorded in the minute books of the Bank. The
minutes of each such meeting shall be signed by the presiding officer and
attested by the secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States. The
purpose of the Bank shall be to carry on the general business of a commercial
bank trust department and to engage in such activities as are necessary,
incident, or related to such business. The Articles of Association of the Bank
shall not be amended, or any other provision added elsewhere in the Articles
expanding the powers of the Bank, without the prior approval of the Comptroller
of the Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a
vote of a majority of the Directors.
<PAGE> 22
As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers and
Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management Staff)
Section 3.03(e) (Powers and Duties of Officers
and Management Staff)
Section 5.01 (Seal)
Amended and restated in its entirety effective May 1, 1996
As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers and
Management Staff)
Section 3.04 (Execution of Documents)
As amended January 1, 1998 Section 1.01 (Annual Meeting)
<PAGE> 23
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
December 2, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an indenture between National Consumer
Cooperative Bank and Bank One Trust Company, N.A., as Trustee, the undersigned,
in accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, hereby consents that the reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations, may
be furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, N.A.
BY: /s/ SANDRA L. CARUBA
---------------------
SANDRA L. CARUBA
VICE PRESIDENT
<PAGE> 24
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 032
Address: 100 Broad Street Page RC-1
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C300
RCON BIL MIL THOU ----
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCON
----
a. Noninterest-bearing balances and currency and coin(1)............... 0081 159,911 1.a
b. Interest-bearing balances(2)........................................ 0071 16,874 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 7,403 2.b
3. Federal funds sold and securities purchased under agreements to
resell 1350 576,473 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCON
----
RC-C).................................................................. 2122 32,603 4.a
b. LESS: Allowance for loan and lease losses........................... 3123 10 4.b
c. LESS: Allocated transfer risk reserve............................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCON
----
reserve (item 4.a minus 4.b and 4.c)................................. 2125 32,593 4.d
5. Trading assets (from Schedule RD-D).................................... 3545 0 5.
6. Premises and fixed assets (including capitalized leases)............... 2145 18,685 6.
7. Other real estate owned (from Schedule RC-M)............. 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)......................................... 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding........... 2155 0 9.
10. Intangible assets (from Schedule RC-M)................................. 2143 31,392 10.
11. Other assets (from Schedule RC-F)...................................... 2160 127,322 11.
12. Total assets (sum of items 1 through 11)............................... 2170 970,653 12.
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<TABLE>
<S> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/98 ST-BK: 171630 FFIEC 032
Address: 100 Broad Street Page RC-2
City, State Zip: Columbus, OH 43271
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
<S> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1)....................................... 2200 802,791 13.a
</TABLE>
<PAGE> 25
<TABLE>
<S> <C> <C>
(1) Noninterest-bearing(1)......................................... 6631 727,720 13
(2) Interest-bearing............................................... 6636
75,071 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)..............
(1) Noninterest bearing............................................
(2) Interest-bearing...............................................
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 0 15.a
b. Trading Liabilities(from Sechedule RC-D).......................... RCFD 3548 0 15.b
16. Other borrowed money: RCON
----
a. With original maturity of one year or less........................ 2332 0 16.a
b. With original maturity of more than one year..................... A547 0 16.b
c. With original maturity of more than three years................... A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding.............. 2920 0 18.
19. Subordinated notes and debentures.................................... 3200 0 19.
20. Other liabilities (from Schedule RC-G)............................... 2930 64,642 20.
21. Total liabilities (sum of items 13 through 20)....................... 2948 867,433 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus........................ 3838 0 23.
24. Common stock......................................................... 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock)............. 3839 35,157 25.
26. a. Undivided profits and capital reserves............................ 3632 67,207 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities........................................................ 8434 56 26.b
27. Cumulative foreign currency translation adjustments.................. 3284 0 27
28. Total equity capital (sum of items 23 through 27).................... 3210 103,220 28
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)................................ 3300 970,653 20
</TABLE>
Memorandum
To be reported only with the March Report of Condition. N/A
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 1996............................................................
.................RCFD 6724 ................ M.1.
<TABLE>
<CAPTION>
<S> <C>
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
