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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 7, 2000
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National Consumer Cooperative Bank
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(Exact Name of Registrant as Specified in its Charter)
United States of America
(12 USC Section 3001 et
seq.) 2-99779 52-1157795
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(State or Other (Commission (I.R.S. Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
1401 Eye Street, N.W., Suite 700, Washington, D.C. 20005
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (202) 336-7700
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events
The exhibits listed in Item 7 below are hereby incorporated herein by reference.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits
1.1 Distribution Agreement, dated January 7, 2000, among National
Consumer Cooperative Bank, Credit Suisse First Boston, Banc of
America Securities LLC, Banc One Capital Markets and SPP
Capital Partners.
4.1 Indenture, dated January 7, 2000, between National Consumer
Cooperative Bank, and Bank One Trust Company, N.A.
4.2 Form of Fixed Rate Senior Note.
4.3 Form of Floating Rate Senior Note
4.4 Form of Fixed Rate Subordinated Note.
4.5 Form of Floating Rate Subordinated Note.
5.1 Opinion of Shea & Gardner, Counsel to National Consumer
Cooperative Bank.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, hereunto duly authorized.
NATIONAL CONSUMER COOPERATIVE BANK
------------------------------------
(Registrant)
By: /s/ Richard L. Reed
-----------------------------------
Richard L. Reed
Managing Director, Chief Financial
Officer
Date: January 7, 2000
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EXHIBIT 1.1
NATIONAL CONSUMER COOPERATIVE BANK
U.S.$350,000,000
MEDIUM-TERM SENIOR NOTES, SERIES B
MEDIUM-TERM SUBORDINATED NOTES, SERIES B
DUE 9 MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
January 7, 2000
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010
Banc of America Securities LLC
Bank of America Corporate Center
NC1-007-07-01
100 North Tryon Street
Charlotte, North Carolina 28255-0001
Banc One Capital Markets, Inc.
One Banc One Plaza
Chicago, Illinois 60670
SPP Capital Partners, LLC
330 Madison Avenue, 28th Floor
New York, New York 10017
Ladies and Gentlemen:
National Consumer Cooperative Bank, a financial institution
organized pursuant to the laws of the United States (doing business as National
Cooperative Bank) (the "Bank"), proposes to issue and sell from time to time its
Medium-Term Senior Notes, Series B, due 9 months or more from the Date of Issue
(the "Senior Notes") and its Medium-Term Subordinated Notes, Series B, due 9
Months or more from the Date of Issue (the "Subordinated Notes" and together
with the Senior Notes, the "Securities") in an aggregate amount up to
$350,000,000 and agrees with each of you (individually, an "Agent", and
together, the "Agents") as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the
reservation by the Bank of the right to sell Securities directly on its own
behalf, the Bank hereby (i) appoints each Agent as an agent of the Bank for the
purpose of soliciting and receiving offers to purchase Securities from
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the Bank pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a separate agreement
(each a "Terms Agreement"), substantially in the form of Annex I hereto,
relating to such sale in accordance with Section 2(b) hereof. This Distribution
Agreement shall not be construed to create either an obligation on the part of
the Bank to sell any Securities or an obligation of any of the Agents to
purchase Securities as principal.
The Senior Notes will be issued under a senior indenture, dated as
of January 15, 1997 (the "Senior Indenture"), between the Bank and Bank One
Trust Company, N.A., as Trustee (the "Trustee"). The Subordinated Notes will be
issued under a subordinated indenture, dated as of January 7, 1999, between the
Bank and the Trustee (the "Subordinated Indenture" and together with the Senior
Indenture, the "Indentures"). The Securities shall have the maturity ranges,
interest rates, if any, redemption provisions and other terms set forth in the
Prospectus referred to below as it may be amended or supplemented from time to
time. The Securities will be issued, and the terms and rights thereof
established, from time to time by the Bank in accordance with the Indentures.
1. The Bank represents and warrants to, and agrees with, each Agent
that:
(a) A registration statement on Form S-3 (File No. 333-90457)
in respect of the Securities and a pre-effective amendment thereto
have been filed with the Securities and Exchange Commission (the
"Commission"); provided, that if the Company files a registration
statement with the Commission pursuant to Rule 462(b) of the 1933
Act Regulations (the "Rule 462(b) Registration Statement"), then,
after such filing, all references to the "Registration Statement"
shall also be deemed to include the 462(b) Registration Statement;
such registration statement (as amended) and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to such Agent, excluding exhibits to such registration
statement, but including all documents incorporated by reference in
the prospectus included therein, have been declared effective by the
Commission in such form; no other document with respect to such
registration statement (as amended) or document incorporated by
reference therein has heretofore been filed or transmitted for
filing with the Commission (other than the prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Securities Exchange Act of 1933 (the "Act"),
each in the form heretofore delivered to the Agents); and no stop
order suspending the effectiveness of such registration statement
(as amended) has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission (any preliminary
prospectus included in such registration statement (as amended) or
filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act, are hereinafter called
a "Preliminary Prospectus"); the various parts of such registration
statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration
statement became effective but excluding Form T-1, each as amended
at the time such part of the registration statement became
effective, is hereinafter collectively called the "Registration
Statement"
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(including any Rule 462(b) Registration Statement); the prospectus
(including, if applicable, any prospectus supplement) relating to
the Securities, in the form in which it has most recently been
filed, or transmitted for filing, with the Commission on or prior to
the date of this Agreement, is hereinafter called the "Prospectus";
any reference herein to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to the applicable form under the Act,
as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus, including any supplement
to the Prospectus that sets forth only the terms of a particular
issue of the Securities (a "Pricing Supplement"), shall be deemed to
refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated therein by reference; any reference to any
amendment to the Registration Statement shall be deemed to refer to
and include any annual report of the Bank filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to and include the
Prospectus as amended or supplemented (including by the applicable
Pricing Supplement filed in accordance with Section 4(a) hereof) in
relation to Securities to be sold pursuant to this Agreement, in the
form filed or transmitted for filing with the Commission pursuant to
Rule 424(b) under the Act and in accordance with Section 4(a)
hereof, including any documents incorporated by reference therein as
of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading; and any further documents so
filed and incorporated by reference in the Prospectus, or any
further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations
of the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date
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as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Bank by any Agent expressly for use in
the Prospectus as amended or supplemented to relate to a particular
issuance of Securities;
(d) Neither the Bank nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
change in the capital stock or long-term debt of the Bank or any of
its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders'
equity or results of operations of the Bank and its subsidiaries,
and there has been no dividend or distribution of any kind declared,
paid or made by the Bank on any class of its capital stock,
otherwise than as set forth or contemplated in the Prospectus;
(e) This Agreement (including any Terms Agreement with respect
to the offering and sale of particular Securities) has been duly
authorized, executed and delivered by the Bank;
(f) The Bank is a corporation duly organized, validly existing
and in good standing under the laws of the United States and has
full power and authority to conduct its business as such and as
described in the Prospectus and the Bank is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification;
(g) Each subsidiary of the Bank has been duly incorporated and
is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus; and each subsidiary of the Bank is
duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease
of property or the conduct of its business requires such
qualification; all of the issued and outstanding capital stock of
each subsidiary of the Bank has been duly authorized and validly
issued and is fully paid and nonassessable; and the capital stock of
each subsidiary owned by the Bank, directly or through subsidiaries,
is owned free from liens, encumbrances and defects;
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(h) The Bank has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Bank have been duly and validly authorized and issued and are fully
paid and non-assessable;
(i) The Securities have been duly authorized, and, when issued
and delivered pursuant to this Agreement and any Terms Agreement,
will have been duly executed, authenticated, issued and delivered
and will constitute valid and legally binding obligations of the
Bank entitled to the benefits provided by the Indentures, which will
be substantially in the forms filed as exhibits to the Registration
Statement; the Indentures have been duly authorized and duly
qualified under the Trust Indenture Act and constitute valid and
legally binding instruments enforceable in accordance with their
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles; and
the Indentures conform and the Securities of any particular issuance
of Securities will conform to the descriptions thereof contained in
the Prospectus as amended or supplemented to relate to such issuance
of Securities;
(j) The issue and sale of the Securities, the compliance by the
Bank with all of the provisions of the Securities, the Indentures,
this Agreement and any Terms Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Bank is a party or by which the Bank is bound or to which any of the
property or assets of the Bank is subject, nor will such action
result in any violation of the provisions of the National Consumer
Cooperative Bank Act, as amended (the "NCCBA"), or the By-laws of
the Bank or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Bank or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any
court or governmental agency or body is required for the
solicitation of offers to purchase Securities, the issue and sale of
the Securities or the consummation by the Bank of the other
transactions contemplated by this Agreement, any Terms Agreement or
the Indentures, except such as have been, or will have been prior to
the Commencement Date (as defined in Section 3 hereof), obtained
under the Act or the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the solicitation by such Agent of offers to purchase Securities from
the Bank and with purchases of Securities by such Agent as
principal, as the case may be, in each case in the manner
contemplated hereby;
(k) The Bank and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business
now operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Bank or any
of its subsidiaries, would individually or in the
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aggregate have a material adverse effect on the Bank and its
subsidiaries taken as a whole;
(l) The Bank is not in violation of the NCCBA, none of the
Bank's subsidiaries is in violation of its respective Certificate of
Incorporation or Charter, as the case may be, and neither the Bank
nor any of its subsidiaries is in violation of its By-laws or in
default in the performance or observance of any material obligation,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be
bound;
(m) The statements set forth in the Prospectus under the
captions "Description of Debt Securities" and "Description of
Notes", insofar as they purport to constitute a summary of the terms
of the Securities, under the caption "Certain United States Federal
Income Tax Considerations", and under the captions "Plan of
Distribution" and "Supplemental Plan of Distribution", insofar as
they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(n) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Bank or any
of its subsidiaries is a party or to which any property of the Bank
or any of its subsidiaries is subject, which, if determined
adversely to the Bank or any of its subsidiaries, would individually
or in the aggregate have a material adverse effect on the current or
future consolidated financial position, stockholders' equity or
results of operations of the Bank and its subsidiaries, and, to the
best of the Bank's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(o) The Bank is not and, after giving effect to each offering
and sale of the Securities, will not be an "investment company" or
an entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(p) Neither the Bank nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located
in Cuba within the meaning of Section 517.075, Florida Statutes;
(q) Immediately after any sale of Securities by the Bank
hereunder or under any Terms Agreement, the aggregate amount of
Securities which shall have been issued and sold by the Bank
hereunder or under any Terms Agreement and of any debt securities of
the Bank (other than such Securities) that shall have been issued
and sold pursuant to the Registration Statement will not exceed the
amount of debt securities registered under the Registration
Statement;
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(r) The amount of the Bank's outstanding bonds, debentures,
notes and other evidences of indebtedness, including the
$350,000,000 aggregate amount of Securities, does not exceed ten
times the paid-in capital and surplus of the Bank; and
(s) Arthur Andersen LLP, who have certified certain financial
statements of the Bank and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of
the Commission thereunder.
2. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, each of the
Agents hereby severally and not jointly agrees, as agent of the Bank, to use its
reasonable efforts to solicit and receive offers to purchase the Securities from
the Bank upon the terms and conditions set forth in the Prospectus as amended or
supplemented from time to time. So long as this Agreement shall remain in effect
with respect to any Agent, the Bank shall not, without the consent of such
Agent, solicit or accept offers to purchase, or sell, any debt securities with a
maturity at the time of original issuance of 9 months or more except pursuant to
this Agreement, any Terms Agreement, or except pursuant to a private placement
not constituting a public offering under the Act or except in connection with a
firm commitment underwriting pursuant to an underwriting agreement that does not
provide for a continuous offering of medium-term debt securities; provided,
that, if, from time to time the Bank is approached by a prospective agent
offering to solicit a specific purchase of Notes, the Bank may engage such agent
with respect to such specific purchase, provided that (i) such agent is engaged
on terms substantially similar (including the same commission schedule) to the
applicable terms of this Agreement and (ii) the Agents are given notice of such
proposed purchase prior to the time it is agreed to. The Bank reserves the right
to sell, and may solicit and accept offers to purchase, Securities directly on
its own behalf in transactions with persons other than broker-dealers, and, in
the case of any such sale not resulting from a solicitation made by any Agent,
no commission will be payable with respect to such sale. These provisions shall
not limit Section 4(f) hereof or any similar provision included in any Terms
Agreement.
Procedural details relating to the issue and delivery of Securities,
the solicitation of offers to purchase Securities and the payment in each case
therefor shall be as set forth in the Administrative Procedure attached hereto
as Annex II as it may be amended from time to time by written agreement between
the Agents and the Bank (the "Administrative Procedure"). The provisions of the
Administrative Procedure shall apply to all transactions contemplated hereunder
other than those made pursuant to a Terms Agreement. Each Agent and the Bank
agree to perform the respective duties and obligations specifically provided to
be performed by each of them in the Administrative Procedure. The Bank will
furnish to the Trustee a copy of the Administrative Procedure as from time to
time in effect.
The Bank reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Securities. As soon as practicable, but
in any event not later than one Business Day in New York City, after receipt of
notice from the Bank, the Agents will suspend solicitation of offers to purchase
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Securities from the Bank until such time as the Bank has advised the Agents that
such solicitation may be resumed. "Business Day" shall mean any day that is not
a Saturday or Sunday, and that in The City of New York is not a day on which
banking institutions generally are authorized or obligated by law or executive
order to close. During such period, the Bank shall not be required to comply
with the provisions of Sections 4(h), 4(i), 4(j) and 4(k). Upon advising the
Agents that such solicitation may be resumed, however, the Bank shall
simultaneously provide the documents required to be delivered by Sections 4(h),
4(i), 4(j) and 4(k), and the Agents shall have no obligation to solicit offers
to purchase the Securities until such documents have been received by the
Agents. In addition, any failure by the Bank to comply with its obligations
hereunder, including without limitation its obligations to deliver the documents
required by Sections 4(h), 4(i), 4(j) and 4(k), shall automatically terminate
the Agents' obligations hereunder, including without limitation its obligations
to solicit offers to purchase the Securities hereunder as agent or to purchase
Securities hereunder as principal.
The Bank agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Bank as a result of a solicitation
made by such Agent, in an amount equal to the following applicable percentage of
the principal amount of such Security sold:
<TABLE>
<CAPTION>
MATURITY SENIOR NOTES SUBORDINATED NOTES
- -------- PERCENT OF PERCENT OF
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
---------------- ----------------
<S> <C> <C>
Less than 9 months Negotiated at time of sale
From 9 months to less than 1 year .125% NA
From 1 year to less than 18 months .150% NA
From 18 months to less than 2 years .200% NA
From 2 years to less than 3 years .250% NA
From 3 years to less than 4 years .350% NA
From 4 years to less than 5 years .450% NA
From 5 years to less than 6 years .500% .500%
From 6 years to less than 7 years .550% .550%
From 7 years to less than 10 years .600% .600%
From 10 years to less than 12 years .625% .650%
From 12 years to less than 15 years .625% .675%
From 15 years to less than 20 years .700% .750%
From 20 years to less than 30 years .750% .875%
From 30 years and greater Negotiated at time of sale Negotiated at time of sale
</TABLE>
(b) Each sale of Securities to any Agent as principal shall be
either:
(i) made in accordance with the terms of this
Agreement and (unless the Bank and such Agent shall otherwise
agree pursuant to clause (ii) below) a Terms Agreement which
will provide for the sale of such Securities to, and the
purchase thereof by, such Agent; a Terms Agreement may also
specify certain
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provisions relating to the reoffering of such Securities by
such Agent; the commitment of any Agent to purchase Securities
as principal, whether pursuant to any Terms Agreement or
otherwise, shall be deemed to have been made on the basis of
the representations and warranties of the Bank herein contained
and shall be subject to the terms and conditions herein set
forth; each Terms Agreement shall specify the principal amount
of Securities to be purchased by any Agent pursuant thereto,
the price to be paid to the Bank for such Securities, any
provisions relating to rights of, and default by, underwriters
acting together with such Agent in the reoffering of the
Securities and the time and date and place of delivery of and
payment for such Securities; and such Terms Agreement shall
also specify any requirements for opinions of counsel,
accountants' letters and officers' certificates pursuant to
Section 4 hereof; or
(ii) in the absence of a Terms Agreement or such
other written confirmation or communication, an oral agreement
with respect to the terms of the Securities and of their offer
and sale evidenced by the offer communicated by the presenting
Agent or Agents and accepted by the Bank, together with the
provisions of this Agreement, shall constitute an agreement
between the presenting Agent or Agents and the Bank for the
sale and purchase of such Securities (whether or not any Terms
Agreement or other written confirmation or communication shall
have been executed by the Bank or the presenting Agent or
Agents). Each Agent proposes to offer Securities purchased by
it as principal for sale at prevailing market prices or prices
related thereto at the time of sale, which may be equal to,
greater than or less than the price at which such Securities
are purchased by such Agent from the Bank.
For each sale of Securities to an Agent as principal that is not
made pursuant to a Terms Agreement, the procedural details relating to the issue
and delivery of such Securities and payment therefor shall be as set forth in
the Administrative Procedure. For each such sale of Securities to an Agent as
principal that is not made pursuant to a Terms Agreement, the Bank agrees to pay
such Agent a commission (or grant an equivalent discount) as provided in Section
2(a) hereof and in accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities to be
purchased by an Agent as principal, whether set forth in a Terms Agreement or in
accordance with the Administrative Procedure, is referred to herein as a "Time
of Delivery".
(c) Each Agent agrees, with respect to any Security denominated
in a currency other than U.S. dollars, as agent, directly or
indirectly, not to solicit offers to purchase, and as principal
under any Terms Agreement or otherwise, directly or indirectly, not
to offer, sell or deliver, such Security in, or to residents of, the
country issuing such currency, except as permitted by applicable
law.
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(d) No Agent shall have any responsibility for maintaining
records with respect to the aggregate principal amount of Securities
sold, or otherwise monitoring the availability of Securities for
sale under the Registration Statement.
(e) Subject to purchases in principal as described herein, no
Security which the Bank has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or
sold by the Bank, until such Security shall have been delivered to
the purchaser thereof against payment by such purchaser.
3. The documents required to be delivered pursuant to Section 6
hereof on the Commencement Date (as defined below) shall be delivered to the
Agents at the offices of Brown & Wood LLP, New York, New York, at 11:00 a.m.,
New York City time, on the date of this Agreement, which date and time of such
delivery may be postponed by agreement between the Agents and the Bank but in no
event shall be later than the day prior to the date on which solicitation of
offers to purchase Securities is commenced or on which any Terms Agreement is
executed (such time and date being referred to herein as the "Commencement
Date").
4. The Bank covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement (including any filing under Rule 462(b) of the 1933 Act
Regulations) or the Prospectus (A) prior to the Commencement Date
which shall be disapproved by any Agent promptly after reasonable
notice thereof or (B) after the date of any Terms Agreement or other
agreement by an Agent to purchase Securities as principal and prior
to the related Time of Delivery which shall be disapproved by any
Agent party to such Terms Agreement or so purchasing as principal
promptly after reasonable notice thereof; (ii) to prepare, with
respect to any Securities to be sold through or to such Agent
pursuant to this Agreement, a Pricing Supplement with respect to
such Securities in a form previously approved by such Agent and to
file such Pricing Supplement pursuant to Rule 424(b)(3) under the
Act not later than the close of business of the Commission on the
fifth business day after the date on which such Pricing Supplement
is first used; (iii) to make no amendment or supplement to the
Registration Statement (including any filing under Rule 462(b) of
the 1933 Act Regulations) or Prospectus, other than any Pricing
Supplement, at any time prior to having afforded each Agent a
reasonable opportunity to review and comment thereon; (iv) to file
promptly all reports and any definitive proxy or information
statements required to be filed by the Bank with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, and during
such same period to advise such Agent, promptly after the Bank
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or has become effective or any
supplement to the Prospectus or any amended Prospectus (other than
any Pricing Supplement that relates to Securities not purchased
through or by such Agent) has been filed with the Commission, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to
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the Securities, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amendment or supplement of
the Registration Statement or Prospectus or for additional
information; and (v) in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of any
such prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as such
Agent may reasonably request to qualify the Securities for offering
and sale under the securities laws of such jurisdictions as such
Agent may request and to comply with such laws so as to permit the
continuance of sales and dealings therein for as long as may be
necessary to complete the distribution or sale of the Securities;
provided, however, that in connection therewith the Bank shall not
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) To furnish such Agent with copies of the Registration
Statement and each amendment thereto, with copies of the Prospectus
as each time amended or supplemented, other than any Pricing
Supplement (except as provided in the Administrative Procedure), in
the form in which it is filed with the Commission pursuant to Rule
424 under the Act, and with copies of the documents incorporated by
reference therein, all in such quantities as such Agent may
reasonably request from time to time; and, if the delivery of a
prospectus is required at any time in connection with the offering
or sale of the Securities (including Securities purchased from the
Bank by such Agent as principal) and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to promptly notify such Agent by telephone
(with confirmation in writing) and request such Agent, in its
capacity as agent of the Bank, to suspend solicitation of offers to
purchase Securities from the Bank (and, if so notified, such Agent
shall cease such solicitations as soon as practicable, but in any
event not later than one business day later); and if the Bank shall
decide to amend or supplement the Registration Statement or the
Prospectus as then amended or supplemented, to so advise such Agent
promptly by telephone (with confirmation in writing) and to prepare
and cause to be filed promptly with the Commission an amendment or
supplement to the Registration Statement or the Prospectus as then
amended or supplemented that will correct such statement or omission
or effect such compliance; provided, however, that if during such
same period such Agent continues to own Securities purchased from
the Bank by such Agent as principal or such Agent is otherwise
required to deliver a prospectus in respect of transactions in the
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<PAGE> 12
Securities, the Bank shall promptly prepare and file with the
Commission such an amendment or supplement;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined
in Rule 158(c) under the Act), an earnings statement of the Bank and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Bank, Rule 158);
(e) So long as any Securities are outstanding, to furnish to
such Agent copies of all reports or other communications (financial
or other) furnished to stockholders, and deliver to such Agent (i)
as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Bank is
listed; and (ii) such additional information concerning the business
and financial condition of the Bank as such Agent may from time to
time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Bank and its
subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(f) That, from the date of any Terms Agreement with such Agent
or other agreement by such Agent to purchase Securities as principal
and continuing to and including the later of (i) the termination of
the trading restrictions for the Securities purchased thereunder, as
notified to the Bank by such Agent and (ii) the related Time of
Delivery, not to offer, sell, contract to sell or otherwise dispose
of any debt securities of the Bank which both mature more than 9
months after such Time of Delivery and are substantially similar to
the Securities, without the prior written consent of such Agent;
(g) That each acceptance by the Bank of an offer to purchase
Securities hereunder (including any purchase by such Agent as
principal not pursuant to a Terms Agreement), and each execution and
delivery by the Bank of a Terms Agreement with such Agent, shall be
deemed to be an affirmation to such Agent that the representations
and warranties of the Bank contained in or made pursuant to this
Agreement are true and correct as of the date of such acceptance or
of such Terms Agreement, as the case may be, as though made at and
as of such date, and an undertaking that such representations and
warranties will be true and correct as of the settlement date for
the Securities relating to such acceptance or as of the Time of
Delivery relating to such sale, as the case may be, as though made
at and as of such date (except that such representations and
warranties shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented relating to such
Securities);
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement), each time a document filed under the
Act or the Exchange Act is incorporated by reference
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<PAGE> 13
into the Prospectus, and each time the Bank sells Securities to such
Agent as principal pursuant to a Terms Agreement and such Terms
Agreement specifies the delivery of an opinion or opinions by Brown
& Wood LLP, counsel to the Agents, as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Bank shall furnish
to such counsel such papers and information as they may reasonably
request to enable them to furnish to such Agent the opinion or
opinions referred to in Section 6(b) hereof;
(i) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing
Supplement), each time a document filed under the Act or the
Exchange Act is incorporated by reference into the Prospectus and
each time the Bank sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement specifies the
delivery of an opinion under this Section 4(i) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the Bank
shall furnish or cause to be furnished forthwith to such Agent a
written opinion of Shea & Gardner, counsel for the Bank, or other
counsel for the Bank satisfactory to such Agent, dated the date of
such amendment, supplement, incorporation or Time of Delivery
relating to such sale, as the case may be, in form satisfactory to
such Agent, to the effect that such Agent may rely on the opinion of
such counsel referred to in Section 6(c) hereof which was last
furnished to such Agent to the same extent as though it were dated
the date of such letter authorizing reliance (except that the
statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to such date) or, in lieu of such opinion, an opinion
of the same tenor as the opinion of such counsel referred to in
Section 6(c) hereof but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to such
date;
(j) That each time the Registration Statement or the Prospectus
shall be amended or supplemented and each time that a document filed
under the Act or the Exchange Act is incorporated by reference into
the Prospectus, in either case to set forth financial information
included in or derived from the Bank's consolidated financial
statements or accounting records, and each time the Bank sells
Securities to such Agent as principal pursuant to a Terms Agreement
and such Terms Agreement specifies the delivery of a letter under
this Section 4(j) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Bank shall cause the
independent certified public accountants who have certified the
financial statements of the Bank and its subsidiaries included or
incorporated by reference in the Registration Statement forthwith to
furnish such Agent a letter, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating to such sale,
as the case may be, in form satisfactory to such Agent, of the same
tenor as the letter referred to in Section 6(d) hereof but modified
to relate to the Registration Statement and the Prospectus as
amended or supplemented to the date of such letter, with such
changes as may be necessary to reflect changes in the financial
statements and other information derived from the accounting records
of the Bank, to the extent such financial statements and other
information are available as of a date not more than five business
days prior to the date of such letter; provided, however, that, with
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<PAGE> 14
respect to any financial information or other matter, such letter
may reconfirm as true and correct at such date as though made at and
as of such date, rather than repeat, statements with respect to such
financial information or other matter made in the letter referred to
in Section 6(d) hereof which was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing
Supplement), each time a document filed under the Act or the
Exchange Act is incorporated by reference into the Prospectus and
each time the Bank sells Securities to such Agent as principal and
the applicable Terms Agreement specifies the delivery of a
certificate under this Section 4(k) as a condition to the purchase
of Securities pursuant to such Terms Agreement, the Bank shall
furnish or cause to be furnished forthwith to such Agent a
certificate, dated the date of such supplement, amendment,
incorporation or Time of Delivery relating to such sale, as the case
may be, in such form and executed by such officers of the Bank as
shall be satisfactory to such Agent, to the effect that the
statements contained in the certificates referred to in Section 6(i)
hereof which was last furnished to such Agent are true and correct
at such date as though made at and as of such date (except that such
statements shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to such date) or, in
lieu of such certificate, certificates of the same tenor as the
certificates referred to in said Section 6(i) but modified to relate
to the Registration Statement and the Prospectus as amended and
supplemented to such date; and
(l) To offer to any person who has agreed to purchase
Securities from the Bank as the result of an offer to purchase
solicited by such Agent the right to refuse to purchase and pay for
such Securities if, on the related settlement date fixed pursuant to
the Administrative Procedure, any condition set forth in Section
6(a), 6(e), 6(f) or 6(g) hereof shall not have been satisfied (it
being understood that the judgment of such person with respect to
the impracticability or inadvisability of such purchase of
Securities shall be substituted, for purposes of this Section 4(l),
for the respective judgments of an Agent with respect to certain
matters referred to in such Sections 6(e) and 6(g), and that such
Agent shall have no duty or obligation whatsoever to exercise the
judgment permitted under such Sections 6(e) and 6(g) on behalf of
any such person).
5. The Bank covenants and agrees with each Agent that the Bank will
pay or cause to be paid the following: (i) the fees, disbursements and expenses
of the Bank's counsel and accountants in connection with the registration of the
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus, the Prospectus and any Pricing Supplements and all other amendments
and supplements thereto and the mailing and delivering of copies thereof to such
Agent; (ii) the fees, disbursements and expenses of counsel for the Agents in
connection with the establishment of the program contemplated hereby, any
opinions to be rendered by such counsel hereunder and under any Terms Agreement
and the transactions contemplated hereunder and under any Terms Agreement; (iii)
the cost of printing, producing or reproducing this Agreement,
14
<PAGE> 15
any Terms Agreement, any Indentures, any Blue Sky and Legal Investment
Memoranda, closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Securities; (iv) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 4(b) hereof, including the fees and disbursements of counsel for the
Agents in connection with such qualification and in connection with the Blue Sky
and legal investment surveys; (v) any fees charged by securities rating services
for rating the Securities; (vi) any filing fees incident to, and the fees and
disbursements of counsel for the Agents in connection with, any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of the Securities; (vii) the cost of preparing the Securities; (viii) the fees
and expenses of any Trustee and any agent of any Trustee and any transfer or
paying agent of the Bank and the fees and disbursements of counsel for any
Trustee or such agent in connection with any Indentures and the Securities; (ix)
any advertising expenses connected with the solicitation of offers to purchase
and the sale of Securities so long as such advertising expenses have been
approved by the Bank; and (x) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. Except as provided in Sections 7 and 8 hereof,
each Agent shall pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Bank, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the Bank herein (and, in the case of an obligation of an Agent
under a Terms Agreement, in or incorporated by reference in such Terms
Agreement) are true and correct at and as of the Commencement Date and any
applicable date referred to in Section 4(k) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at and as of such
Solicitation Time or Time of Delivery, as the case may be, the condition that
prior to such Solicitation Time or Time of Delivery, as the case may be, the
Bank shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the
Prospectus as amended or supplemented (including the Pricing
Supplement) with respect to such Securities shall have been filed
with the Commission pursuant to Rule 424(b) under the Act within the
applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 4(a)
hereof; (ii) no stop order suspending the effectiveness of the
Registration Statement (including any Rule 462(b) Registration
Statement) shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and (iii)
all requests for additional information on the part of the
Commission shall have been complied with to the reasonable
satisfaction of such Agent;
(b) Brown & Wood LLP, counsel to the Agents, shall have
furnished to such Agent (i) such opinion or opinions, dated the
Commencement Date, with respect to the matters covered in paragraphs
(i), (v), (vii), (xii) and (xv) of subsection (c) below, as well
15
<PAGE> 16
as such other related matters as such Agent may reasonably request,
and (ii) if and to the extent requested by such Agent, with respect
to each applicable date referred to in Section 4(h) hereof that is
on or prior to such Solicitation Time or Time of Delivery, as the
case may be, an opinion or opinions, dated such applicable date, to
the effect that such Agent may rely on the opinion or opinions which
were last furnished to such Agent pursuant to this Section 6(b) to
the same extent as though it or they were dated the date of such
letter authorizing reliance (except that the statements in such last
opinion or opinions shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such
date) or, in any case, in lieu of such an opinion or opinions, an
opinion or opinions of the same tenor as the opinion or opinions
referred to in clause (i) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to such
date; and in each case such counsel shall have received such papers
and information as they may reasonably request to enable them to
pass upon such matters;
(c) Shea & Gardner, counsel for the Bank, or other counsel for
the Bank satisfactory to such Agent, shall have furnished to such
Agent their written opinions, dated the Commencement Date and each
applicable date referred to in Section 4(i) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may
be, in form and substance satisfactory to such Agent, to the effect
that:
(i) The Bank is a financial institution duly
organized, validly existing and in good standing under the laws
of the United States and has full power and authority to
conduct its business as described in the Prospectus as amended
or supplemented and the Bank is duly qualified to do business
as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification;
(ii) Each subsidiary of the Bank has been duly
incorporated and is an existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with
power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus; and
each subsidiary of the Bank is duly qualified to do business as
a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification; all of
the issued and outstanding capital stock of each subsidiary of
the Bank has been duly authorized and validly issued and is
fully paid and nonassessable; and the capital stock of each
subsidiary owned by the Bank, directly or through subsidiaries,
is owned free from liens, encumbrances and defects;
(iii) The Bank has an authorized capitalization as set
forth in the Prospectus as amended or supplemented and all of
the issued shares of capital stock of the Bank have been duly
and validly authorized and issued and are fully paid and
non-assessable;
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<PAGE> 17
(iv) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Bank or any of
its subsidiaries is a party or to which any property of the
Bank or any of its subsidiaries is subject, which, if
determined adversely to the Bank or any of its subsidiaries,
would individually or in the aggregate have a material adverse
effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the
Bank and its subsidiaries; and to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(v) This Agreement and any applicable Terms Agreement
have been duly authorized, executed and delivered by the Bank;
(vi) The Securities have been duly authorized and,
when duly executed, authenticated, issued and delivered by the
Bank, will constitute valid and legally binding obligations of
the Bank entitled to the benefits provided by the Indentures;
and the Indentures conform and the Securities will conform to
the descriptions thereof in the Prospectus as amended or
supplemented;
(vii) The Indentures have been duly authorized,
executed and delivered by the parties thereto and constitute
valid and legally binding instruments, enforceable in
accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indentures
have been duly qualified under the Trust Indenture Act;
(viii) The Bank and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the
business now operated by them and have not received any notice
of proceedings relating to the revocation or modification of
any such certificate, authority or permit that, if determined
adversely to the Bank or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect
on the Bank and its subsidiaries taken as a whole;
(ix) The issue and sale of the Securities, the
compliance by the Bank with all of the provisions of the
Securities, the Indentures, this Agreement and any applicable
Terms Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to
such counsel to which the Bank is a party or by which the Bank
is bound or to which any of the property or assets of the Bank
is subject, nor will such action result in any violation of the
provisions of the NCCBA or the By-laws of the Bank or any
statute or any order, rule or regulation known to such counsel
of any
17
<PAGE> 18
court or governmental agency or body having jurisdiction over
the Bank or any of its properties;
(x) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the solicitation of
offers to purchase Securities, the issue and sale of the
Securities or the consummation by the Bank of the other
transactions contemplated by this Agreement, any applicable
Terms Agreement, or the Indentures, except such as have been
obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the solicitation by the Agents
of offers to purchase Securities from the Bank and with
purchases of Securities by an Agent as principal, as the case
may be, in each case in the manner contemplated hereby;
(xi) The Bank is not in violation of the NCCBA, none
of the Bank's subsidiaries is in violation of its respective
Certificate of Incorporation or Charter, as the case may be,
and neither the Bank nor any of its subsidiaries is in
violation of its By-laws or in default in the performance or
observance of any material obligation, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it
is a party or by which it or any of its properties may be
bound;
(xii) The statements set forth in the Prospectus under
the caption "Description of Debt Securities" and "Description
of Notes", to the extent they relate to the Notes, are
accurate, complete and fair;
(xiii) The Bank is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company" or an entity "controlled" by an "investment company",
as such terms are defined in the Investment Company Act;
(xiv) The documents incorporated by reference in the
Prospectus (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder; and they have no reason to believe
that any of such documents, when they became effective or were
so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act, an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and, in the case of
other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a
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<PAGE> 19
material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such documents
were so filed, not misleading; and
(xv) The Registration Statement and the Prospectus as
amended and supplemented and any further amendments and
supplements thereto made by the Bank prior to the date of such
opinion (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the
rules and regulations thereunder; although they do not assume
any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or
the Prospectus, except for those referred to in the opinion in
subsection (xii) of this Section 6(c), they have no reason to
believe that, as of its effective date, the Registration
Statement or any further amendment or supplement thereto made
by the Bank prior to the date of such opinion (other than the
financial statements and related schedules therein, as to which
such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of the date of
such opinion, the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Bank prior
to the date of such opinion (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; and they
do not know of any amendment to the Registration Statement
required to be filed or any contracts or other documents of a
character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or
required to be described in the Registration Statement or the
Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required.
(d) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section
4(j) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, the independent certified public
accountants who have certified the financial statements of the Bank
and its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to such Agent a letter,
dated the Commencement Date or such applicable date, as the case may
be, in form and substance satisfactory to such Agent, to the effect
set forth in Annex III hereto;
(e) (i) Neither the Bank nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the
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<PAGE> 20
Prospectus as amended or supplemented prior to the date of the
Pricing Supplement relating to the Securities to be delivered at the
relevant Time of Delivery any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented prior to
the date of the Pricing Supplement relating to the Securities to be
delivered at the relevant Time of Delivery and (ii) since the
respective dates as of which information is given in the Prospectus
as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the
relevant Time of Delivery there shall not have been any change in
the capital stock or long-term debt of the Bank or any of its
subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Bank and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented prior to
the date of the Pricing Supplement relating to the Securities to be
delivered at the relevant Time of Delivery, the effect of which, in
any such case described in Clause (i) or (ii), is in the judgment of
such Agent so material and adverse as to make it impracticable or
inadvisable to proceed with the solicitation by such Agent of offers
to purchase Securities from the Bank or the purchase by such Agent
of Securities from the Bank as principal, as the case may be, on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery;
(f) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Bank's debt securities by any
"nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2)
under the Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Bank's debt
securities;
(g) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii)
a general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities; or (iii)
the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in the
Clause (iii) in the judgment of such Agent makes it impracticable or
inadvisable to proceed with the solicitation of offers to purchase
Securities or the purchase of the Securities from the Bank as
principal pursuant to the applicable Terms Agreement or otherwise,
as the case may be, on the terms and in the manner contemplated in
the Prospectus;
(h) With respect to any Security denominated in a currency
other than the U.S. dollar, more than one currency or a composite
currency or any Security the principal or interest of which is
indexed to such currency, currencies or composite currency, there
20
<PAGE> 21
shall not have occurred a suspension or material limitation in
foreign exchange trading in such currency, currencies or composite
currency by a major international bank, a general moratorium on
commercial banking activities in the country or countries issuing
such currency, currencies or composite currency, the outbreak or
escalation of hostilities involving, the occurrence of any material
adverse change in the existing financial, political or economic
conditions of, or the declaration of war or a national emergency by,
the country or countries issuing such currency, currencies or
composite currency or the imposition or proposal of exchange
controls by any governmental authority in the country or countries
issuing such currency, currencies or composite currency;
(i) The Bank shall have furnished or caused to be furnished to
such Agent certificates of officers of the Bank dated the
Commencement Date and each applicable date referred to in Section
4(k) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, in such form and executed by such
officers of the Bank as shall be satisfactory to such Agent, as to
the accuracy of the representations and warranties of the Bank
herein at and as of the Commencement Date or such applicable date,
as the case may be, as to the performance by the Bank of all of its
obligations hereunder to be performed at or prior to the
Commencement Date or such applicable date, as the case may be, as to
the matters set forth in subsections (a) and (e) of this Section 6,
and as to such other matters as such Agent may reasonably request.
7. (a) The Bank will indemnify and hold harmless each Agent against
any losses, claims, damages or liabilities, joint or several, to
which such Agent may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained
in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any other
prospectus relating to the Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and will reimburse such Agent for any legal or other
expenses reasonably incurred by it in connection with investigating
or defending any such action, claim, damage, liability or loss as
such expenses are incurred; provided, however, that the Bank shall
not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented
or any other prospectus relating to the Securities, or any such
amendment or supplement, in reliance upon and in conformity with
written information furnished to the Bank by such Agent expressly
for use therein, unless such loss, claim, damage or liability arises
out of the offer or sale of Securities occurring after the Agent has
notified the Bank in writing that such information should no longer
be used therein, it being understood and agreed that the only such
information furnished by any Agent consists of the information
described as such in subsection (b) below.
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<PAGE> 22
(b) Each Agent will (severally and not jointly) indemnify and
hold harmless the Bank against any losses, claims, damages or
liabilities to which the Bank may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement,
the Prospectus, the Prospectus as amended or supplemented or any
other prospectus relating to the Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the
Registration Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the Securities, or
any such amendment or supplement, in reliance upon and in conformity
with written information furnished to the Bank by such Agent
expressly for use therein; and will reimburse the Bank for any legal
or other expenses reasonably incurred by the Bank in connection with
investigating or defending any such action or claim as such expenses
are incurred, unless such loss, claim, damage or liability arises
out of the offer or sale of Securities occurring after the Agent has
notified the Bank in writing that such information should no longer
be used therein it being understood and agreed that the only such
information furnished by any Agent consists of the second sentence
and the fourth sentence of the second paragraph under "Supplemental
Plan of Distribution".
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof
is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense
thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or
22
<PAGE> 23
claim) unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Bank on the one hand and each
Agent on the other from the offering of the Securities to which such
loss, claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute
to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Bank on the one hand and
each Agent on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Bank on the one hand and each Agent on the other shall be deemed
to be in the same proportion as the total net proceeds from the sale
pursuant to this Agreement of the Securities which are the subject
of the losses, claims, damages or liabilities (or actions in respect
thereof) (before deducting expenses) received by the Bank bear to
the total commissions or discounts received by such Agent in respect
thereof. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact required to be stated therein or necessary in order to
make the statements therein not misleading relates to information
supplied by the Bank on the one hand or by any Agent on the other
and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or
omission. The Bank and each Agent agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were
determined by per capita allocation (even if all Agents were treated
as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in
this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), an Agent
shall not be required to contribute any amount in excess of the
amount by which the total public offering price at which the
Securities purchased by or through it were sold exceeds the amount
of any damages which such Agent has otherwise been required to pay
by reason of such untrue
23
<PAGE> 24
or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
obligations of each of the Agents under this subsection (d) to
contribute are several in proportion to the respective purchases
made by or through it to which such loss, claim, damage or liability
(or action in respect thereof) relates and are not joint.
(e) The obligations of the Bank under this Section 7 shall be
in addition to any liability which the Bank may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Agent within the meaning of the Act; and the
obligations of each Agent under this Section 7 shall be in addition
to any liability which such Agent may otherwise have and shall
extend, upon the same terms and conditions, to each officer and
director of the Bank and to each person, if any, who controls the
Bank within the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the
Bank and in performing the other obligations of such Agent hereunder (other than
in respect of any purchase by an Agent as principal, pursuant to a Terms
Agreement or otherwise), is acting solely as agent for the Bank and not as
principal. Each Agent will make reasonable efforts to assist the Bank in
obtaining performance by each purchaser whose offer to purchase Securities from
the Bank was solicited by such Agent and has been accepted by the Bank, but such
Agent shall not have any liability to the Bank in the event such purchase is not
consummated for any reason. If the Bank shall default on its obligation to
deliver Securities to a purchaser whose offer it has accepted, the Bank shall
(i) hold each Agent harmless against any loss, claim or damage arising from or
as a result of such default by the Bank and (ii) notwithstanding such default,
pay to the Agent that solicited such offer any commission to which it would be
entitled in connection with such sale.
9. The respective indemnities, agreements, representations,
warranties and other statements by any Agent and the Bank set forth in or made
pursuant to this Agreement shall remain in full force and effect regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Agent or any controlling person of any Agent, or the Bank, or any
officer or director or any controlling person of the Bank, and shall survive
each delivery of and payment for any of the Securities. If this Agreement is
suspended or terminated pursuant to Section 10 hereof or for any other reason or
if for any reason the sale of Securities described in a confirmation or Terms
Agreement referred to in Section 2 by the Bank to an Agent is not consummated,
the Bank shall remain responsible for the expenses to be paid or reimbursed by
it pursuant to Section 5 and the obligations of the Bank under Sections 4(d) and
4(e).
10. The provisions of this Agreement relating to the solicitation of
offers to purchase Securities from the Bank may be suspended or terminated at
any time by the Bank as to any Agent or by any Agent as to such Agent upon the
giving of one Business Day's written notice of such suspension or termination to
such Agent or the Bank, as the case may be. In the event of such suspension or
termination with respect to any Agent, (x) this Agreement shall remain in full
24
<PAGE> 25
force and effect with respect to any Agent as to which such suspension or
termination has not occurred, (y) this Agreement shall remain in full force and
effect with respect to the rights and obligations of any party which have
previously accrued or which relate to Securities which are already issued,
agreed to be issued or the subject of a pending offer at the time of such
suspension or termination and (z) in any event, this Agreement shall remain in
full force and effect insofar as the fourth paragraph of Section 2(a), and
Sections 4(d), 4(e), 5, 7, 8 and 9 hereof are concerned.
11. If at any time the Bank and any of the Agents shall determine to
issue and sell Securities denominated in a currency other than U.S. dollars,
which other currency may include a currency unit, or with respect to which an
index is used to determine the amounts of payments of principal and any premium
and interest, the Bank and any such Agent may execute and deliver a supplement
to this Agreement for the purpose of making any appropriate additions to and
modifications of the terms of this Agreement (and the Procedures) applicable to
such Securities and the offer and sale thereof. The Bank will not issue
Securities denominated in Yen otherwise than in compliance with applicable
Japanese laws, regulations and policies. In particular, the Bank or its
designated agent shall submit such reports or information as may be required
from time to time by applicable law, regulations and guidelines promulgated by
Japanese governmental and regulatory authorities in the case of the issue and
purchase of the Securities and the Bank shall ensure that each such Security
shall have such minimum denomination and maturity as may be allowed from time to
time by Japanese governmental and regulatory authorities.
12. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in writing,
and if to Credit Suisse First Boston Corporation shall be sufficient in all
respects when delivered or sent by facsimile transmission or registered mail to
Eleven Madison Avenue, New York, New York 10010, Facsimile Transmission No.
(212) 325-8183, Attention: Short and Medium Term Finance; if to Banc of America
Securities LLC shall be sufficient in all respects when delivered or sent by
telex, facsimile transmission or registered mail to Bank of America Corporate
Center, NC1-007-07-01, 100 North Tryon Street, Charlotte, NC 28255-0001,
Facsimile Transmission No. (704) 388-9939; if to Banc One Capital Markets, Inc.
shall be sufficient in all respects when delivered or sent by telex, facsimile
transmission or registered mail to 1 Banc One Plaza, Chicago, IL 60670,
Facsimile Transmission No. (312) 732-4773, Attention: Corporate Securities
Structuring; if to SPP Capital Partners, LLC shall be sufficient in all respects
when delivered or sent by telex, facsimile transmission or registered mail to
330 Madison Avenue, 28th Floor, New York, New York 10017, Facsimile Transmission
No. (212) 455-4545, Attention Amy Lazarus; and if to the Bank shall be
sufficient in all respects when delivered or sent by facsimile transmission or
registered mail to 1401 Eye Street N.W., Suite 700, Washington, D.C. 20005,
Facsimile Transmission No. (202) 336-7803, Attention: Treasurer.
13. This Agreement and any Terms Agreement shall be binding upon,
and inure solely to the benefit of, each Agent and the Bank, and to the extent
provided in Sections 7, 8 and 9 hereof,
25
<PAGE> 26
the officers and directors of the Bank and any person who controls any Agent or
the Bank, and their respective personal representatives, successors and assigns,
and no other person shall acquire or have any right under or by virtue of this
Agreement or any Terms Agreement. No purchaser of any of the Securities through
or from any Agent hereunder shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF NEW YORK STATE'S CONFLICT OF LAWS RULES.
16. This Agreement and any Terms Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be an original, but all of such respective counterparts
shall together constitute one and the same instrument.
26
<PAGE> 27
If the foregoing is in accordance with your understanding, please
sign and return to us five counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Bank and each of you in accordance with its terms.
Very truly yours,
National Consumer Cooperative Bank
By: /s/ William E. Seas III
-----------------------------------
Name: William E. Seas
Title: Treasurer
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
BANC ONE CAPITAL MARKETS, INC.
SPP CAPITAL PARTNERS, LLC
By: Credit Suisse First Boston Corporation
By: /s/ Helena Willner
------------------------------------
Authorized Signatory
27
<PAGE> 28
ANNEX I
NATIONAL CONSUMER COOPERATIVE BANK
MEDIUM-TERM SENIOR NOTES, SERIES B
MEDIUM-TERM SUBORDINATED NOTES, SERIES B
DUE 9 MONTHS OR MORE FROM DATE OF ISSUE
Terms Agreement
____________, ____
[CREDIT SUISSE FIRST BOSTON CORPORATION
ELEVEN MADISON AVENUE
NEW YORK, NEW YORK 10010]
[BANC OF AMERICA SECURITIES LLC
BANK OF AMERICA CORPORATE CENTER
NC1-007-07-01
100 NORTH TRYON STREET
CHARLOTTE, NORTH CAROLINA 28255-0001]
[BANC ONE CAPITAL MARKETS, INC.
1 BANC ONE PLAZA
CHICAGO, ILLINOIS 60670]
[SPP CAPITAL PARTNERS, LLC
330 MADISON AVENUE, 28TH FLOOR
NEW YORK, NEW YORK 10017]
Ladies and Gentlemen:
National Consumer Cooperative Bank (the "Bank") proposes, subject to
the terms and conditions stated herein and in the Distribution Agreement, dated
January 7, 2000 (the "Distribution Agreement"), between the Bank on the one hand
and Credit Suisse First Boston Corporation, Banc of America Securities LLC, Banc
One Capital Markets, Inc., and SPP Capital Partners, LLC (the "Agents") on the
other, to issue and sell to the securities specified in the Schedule hereto (the
"Purchased Securities"). Each of the provisions of the Distribution Agreement
not specifically related to the solicitation by the Agents, as agents of the
Bank, of offers to purchase Securities is incorporated herein by reference in
its entirety, and shall be deemed to be part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Nothing
contained herein or in the Distribution Agreement shall make any party hereto an
agent of the Bank or make such party subject to the provisions therein relating
to the solicitation of offers to purchase Securities from the Bank, solely by
virtue of its execution of
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<PAGE> 29
this Terms Agreement. Each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Terms
Agreement, except that each representation and warranty in Section 1 of the
Distribution Agreement which makes reference to the Prospectus shall be deemed
to be a representation and warranty as of the date of the Distribution Agreement
in relation to the Prospectus (as therein defined), and also a representation
and warranty as of the date of this Terms Agreement in relation to the
Prospectus as amended and supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Bank agrees to
issue and sell to [CREDIT SUISSE FIRST BOSTON CORPORATION], [BANC OF AMERICA
SECURITIES LLC], [BANC ONE CAPITAL MARKETS, INC.], AND [SPP CAPITAL PARTNERS,
LLC] and [CREDIT SUISSE FIRST BOSTON CORPORATION], [BANC OF AMERICA SECURITIES
LLC], [BANC ONE CAPITAL MARKETS, INC.], AND [SPP CAPITAL PARTNERS, LLC] agree to
purchase from the Bank the Purchased Securities, at the time and place, in the
principal amount and at the purchase price set forth in the Schedule hereto.
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<PAGE> 30
If the foregoing is in accordance with your understanding, please
sign and return to us five counterparts hereof, and upon acceptance hereof by
you this letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Bank.
National Consumer Cooperative Bank
By:
--------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
BANC ONE CAPITAL MARKETS, INC.
SPP CAPITAL PARTNERS, LLC
By: Credit Suisse First Boston Corporation
By:
---------------------------------
Authorized Signatory
I-3
<PAGE> 31
SCHEDULE TO ANNEX I
Title of Purchased Securities:
[ %] Medium-Term Senior Notes[, SERIES [ ]]
[ %] Medium-Term Subordinated Notes[, SERIES [ ]]
Aggregate Principal Amount:
[$__________]
[PRICE TO PUBLIC:]
Purchase Price by [CREDIT SUISSE FIRST BOSTON CORPORATION], [BANC OF AMERICA
SECURITIES LLC], [BANC ONE CAPITAL MARKETS, INC.], AND [SPP CAPITAL PARTNERS,
LLC]:
% of the principal amount of the Purchased Securities[, PLUS ACCRUED
INTEREST FROM _______ TO _______] [AND ACCRUED AMORTIZATION, IF ANY, FROM ______
TO _____]
Method of and Specified Funds for Payment of Purchase Price:
[BY CERTIFIED OR OFFICIAL BANK CHECK OR CHECKS, PAYABLE TO THE ORDER
OF THE BANK, IN IMMEDIATELY AVAILABLE FUNDS]
[BY WIRE TRANSFER TO A BANK ACCOUNT SPECIFIED BY THE BANK IN
IMMEDIATELY AVAILABLE FUNDS]
Senior Indenture:
Senior Indenture, dated as of January 15, 1997, between the Bank and
The First National Bank of Chicago, as Trustee
Subordinated Indenture:
Subordinated Indenture, dated as of January 7, 2000, between the
Bank and Bank One Trust Company, N.A., as Trustee
Time of Delivery:
Closing Location for Delivery of Securities:
Maturity:
Interest Rate:
Sch-1
<PAGE> 32
[ %]
Interest Payment Dates:
[MONTHS AND DATES]
Documents to be Delivered:
The following documents referred to in the Distribution Agreement
shall be delivered as a condition to the Closing:
[(1) THE OPINION OR OPINIONS OF COUNSEL TO THE AGENTS REFERRED TO
IN SECTION 4(h).]
[(2) THE OPINION OF COUNSEL TO THE BANK REFERRED TO IN SECTION
4(i).]
[(3) THE ACCOUNTANTS' LETTER REFERRED TO IN SECTION 4(j).]
[(4) THE OFFICERS' CERTIFICATE REFERRED TO IN SECTION 4(k).]
Other Provisions (including Syndicate Provisions, if applicable):
Sch-2
<PAGE> 33
ANNEX II
ADMINISTRATIVE PROCEDURES
FOR FIXED AND FLOATING RATE MEDIUM-TERM SENIOR AND SUBORDINATED NOTES, SERIES B
DUE 9 MONTHS OR MORE FROM DATE OF ISSUE
DATED AS OF JANUARY 7, 2000
Medium-Term Senior Notes, Series B (the "Senior Notes") and
Medium-Term Subordinated Notes, Series B (the "Subordinated Notes" and, together
with the Senior Notes, the "Notes"), are to be offered on a continuing basis by
National Consumer Cooperative Bank ("NCB"), to or through Credit Suisse First
Boston Corporation, Banc of America Securities LLC, Banc One Capital Markets,
Inc. and SPP Capital Partners, LLC (each, an "Agent" and, collectively, the
"Agents"), pursuant to a Distribution Agreement dated January 7, 2000 (the
"Distribution Agreement") among NCB and the Agents. The Distribution Agreement
provides both for the sale of Notes by NCB to one or more of the Agents as
principal for resale to investors and other purchasers and for the sale of Notes
by NCB directly to investors (as may from time to time be agreed to by NCB and
the related Agents) in which case the Agents will act as agents of NCB in
soliciting Note purchases.
Unless otherwise agreed by the related Agents and NCB, Notes will be
purchased by the related Agents as principal. Such purchases will be made in
accordance with terms agreed upon by the related Agents and NCB (which terms,
unless otherwise agreed, shall be agreed upon orally, with written confirmation
prepared by the related Agents and mailed to NCB). If agreed upon by NCB and the
applicable Agent, such Agent, acting solely for NCB and not as principal, will
use its reasonable efforts to solicit offers to purchase the Notes. Only those
provisions in these Administrative Procedures that are applicable to the
particular role that an Agent will perform shall apply.
The Senior Notes will be issued as a series of securities pursuant
to a Senior Indenture, dated as of January 15, 1997, as may be amended and
supplemented from time to time (the "Senior Indenture"), between NCB and Bank
One Trust Company, N.A. (as successor Trustee to the First National Bank of
Chicago) (the "Trustee"), as trustee with respect to the Senior Notes. The
Subordinated Notes will be issued as a series of securities pursuant to a
Subordinated Indenture dated as of January 7, 2000, as may be amended or
supplemented from time to time (the "Subordinated Indenture"), between NCB and
the Trustee as trustee with respect to the Subordinated Notes. The Senior
Indenture and the Subordinated Indenture are collectively referred to herein as
the "Indentures." In accordance with the provisions of the Indentures, the
Trustee has been appointed Authenticating Agent (in such capacity, the "Issuing
Agent"). The Trustee will act as NCB's Paying Agent with respect to the Notes
(in such capacity the "Paying Agent").
A Registration Statement (the "Registration Statement," which term
shall include any additional registration statements or amendments thereto filed
in connection with the Notes as
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<PAGE> 34
provided in the introductory paragraph of the Distribution Agreement) with
respect to, among other securities, the Notes has been filed with the Securities
and Exchange Commission (the "Commission"). The most recent base Prospectus
included in the Registration Statement, as supplemented with respect to the
Notes, is herein referred to as the "Prospectus." The most recent supplement to
the Prospectus setting forth the purchase price, interest rate or formula,
maturity date and other terms of the Notes (as applicable) is herein referred to
as the "Pricing Supplement."
The Notes will be issued in book-entry form and represented by one
or more global certificates in fully registered form without coupons (each, a
"Book-Entry Note") delivered to the Issuing Agent, as agent for The Depository
Trust Company ("DTC"), and recorded in the book-entry system maintained by DTC.
General procedures relating to the issuance of the Notes are set
forth in Part I hereof. Part II hereof sets forth procedures for the issuance of
Notes in book-entry form. Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in the applicable Indenture or
the Notes, as the case may be.
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<PAGE> 35
PART I: GENERAL PROCEDURES
Date of Issuance/
Authentication: Each Note will be dated as of the date of its
authentication by the Issuing Agent. Each
Note shall also bear an original issue date
(each, an "Original Issue Date"). The
Original Issue Date shall remain the same for
all Notes subsequently issued upon transfer,
exchange or substitution of an original Note
regardless of their dates of authentication.
Maturities: Each Note will mature on a date selected by
the investor or other purchaser and agreed to
by NCB which is not less than nine months
from its Original Issue Date (the "Stated
Maturity Date"); provided, however, that
Notes bearing interest at rates determined by
reference to selected indices ("Floating Rate
Notes") will mature on an Interest Payment
Date.
Registration: Unless otherwise provided in the applicable
Pricing Supplement, Notes will be issued only
in fully registered form.
Denominations: Unless otherwise provided in the applicable
Pricing Supplement, Notes will be issued in
denominations of $1,000 or any integral
multiple of $1,000 in excess thereof.
Interest Base Rates
applicable to
Floating Rate
Notes: Unless otherwise provided in the applicable
Pricing Supplement, Floating Rate Notes
(except for certain Discount Notes) will be
issued as described below. The applicable
Pricing Supplement will specify the "Interest
Rate Basis" or "Interest Rate Bases" by
reference to which interest will be
determined which may be one or more of the CD
Rate ("CD Rate Notes"), the CMT Rate ("CMT
Rate Notes"), the Commercial Paper Rate
("Commercial Paper Rate Notes"), the Federal
Funds Rate ("Federal Funds Rate Notes"),
LIBOR ("LIBOR Notes"), the Prime Rate ("Prime
Rate Notes"), the Treasury Rate ("Treasury
Rate Notes") or any other interest rate basis
or formula specified in the applicable
Pricing Supplement, or by reference to two or
more such rates, as adjusted by the Spread
and/or Spread Multiplier, if any, applicable
to such Floating Rate Notes.
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<PAGE> 36
Repayment/Redemption: The Notes will be subject to repayment at the
option of the Holders thereof in accordance
with the terms of the Notes on their
respective Optional Repayment Dates, if any.
Optional Repayment Dates, if any, will be
fixed at the time of sale and set forth in
the applicable Pricing Supplement and in the
applicable Note. If no Optional Repayment
Dates are indicated with respect to a Note,
such Note will not be repayable at the option
of the Holder prior to its Stated Maturity
Date.
The Notes will be subject to redemption by
NCB on and after their respective Redemption
Dates, if any. Redemption Dates, if any, will
be fixed at the time of sale and set forth in
the applicable Pricing Supplement and in the
applicable Note. If no Redemption Dates are
indicated with respect to a Note, such Note
will not be redeemable prior to its Stated
Maturity Date.
Amortizing Notes If a Note is designated on the face thereof
as an Amortizing Note, payments of principal
and interest will be made in equal
installments over the life of the Note, at
periodic intervals as specified in the
applicable Pricing Supplement and on the
Stated Maturity Date. A table setting forth
payment information in respect of each
Amortizing Note will be included in the
applicable Pricing Supplement and set forth
in the Note. Unless otherwise specified in
the applicable Pricing Supplement, interest
on an Amortizing Note will be computed on the
basis of a 360-day year of twelve 30-day
months. Payments with respect to an
Amortizing Note will be applied first to
interest due and payable thereon and then to
the reduction of the unpaid principal amount
of the Amortizing Notes. Further information
concerning additional terms and conditions of
any issue of Amortizing Notes will be
provided in the applicable Pricing
Supplement.
Extendible Notes: The applicable Pricing Supplement will
indicate whether NCB has the option to extend
the Stated Maturity Date of the Notes (other
than Amortizing Notes) for one or more
periods up to but not beyond a date set forth
in the Pricing Supplement. If NCB has this
option with respect to any applicable Notes,
the procedures relating thereto will be as
set forth in the applicable Pricing
Supplement.
Renewable Notes: The applicable Pricing Supplement will
indicate whether the Notes will mature unless
the term of all or any portion of the
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<PAGE> 37
Note is renewed in accordance with the
procedures described in the applicable
Pricing Supplement.
Calculation of
Interest: In case of Fixed Rate Notes, interest
(including payments for partial periods) will
be calculated and paid on the basis of a
360-day year of twelve 30-day months.
The interest rate on each Floating Rate Note
will be calculated by reference to the
specified Interest Rate Basis or specified
Interest Rate Bases plus or minus the
applicable Spread, if any, and/or multiplied
by the applicable Spread Multiplier, if any.
Unless otherwise provided in the applicable
Pricing Supplement, accrued interest on each
Floating Rate Note will be calculated by
multiplying its principal amount by an
accrued interest factor. Such accrued
interest factor is computed by adding the
interest factor calculated for each day in
the period, from and including the Original
Issue Date, or from the last date for which
interest has been paid or duly provided for,
to but excluding the date for which accrued
interest is being calculated. Unless
otherwise specified in the applicable Pricing
Supplement, the interest factor for each such
day is computed by dividing the interest rate
applicable to such day by 360 in the case of
CD Rate Notes, Commercial Paper Rate Notes,
Federal Funds Rate Notes, LIBOR Notes or
Prime Rate Notes, or by the actual number of
days in the year in the case of CMT Rate
Notes or Treasury Rate Notes. The interest
factor for Notes for which the interest rate
is calculated with reference to two or more
Interest Rate Bases will be calculated as set
forth in the applicable Pricing Supplement.
Interest: General. Each Note will bear interest in
accordance with its terms. Unless otherwise
provided in the applicable Pricing
Supplement, each payment of interest on the
Notes will include interest accrued from and
including the immediately preceding Interest
Payment Date in respect of which interest has
been paid (or from and including the Original
Issue Date, if no interest has been paid with
respect to the applicable Note) to but
excluding the related Interest Payment Date,
the Stated Maturity Date, any Redemption Date
or any Optional Repayment Date (each Stated
Maturity Date, Redemption Date or Optional
Repayment Date is referred to herein as
II-5
<PAGE> 38
"Maturity"). Interest payable at Maturity
will be payable to the Person to whom the
principal of such Note is payable.
If an Interest Payment Date or the date of
Maturity with respect to any Fixed Rate Note
falls on a day that is not a Business Day (as
defined herein), the payment of interest
required to be made on such Interest Payment
Date will be made on the next succeeding
Business Day with the same force and effect
as if made on such Interest Payment Date and
no interest will accrue on such payment for
the period from and after such Interest
Payment Date to the next succeeding Business
Day. If an Interest Payment Date (other than
at Maturity) with respect to any Floating
Rate Note would otherwise fall on a day that
is not a Business Day, such Interest Payment
Date will be postponed to the next succeeding
day that is a Business Day (as defined
herein), except that in the case of a LIBOR
Note (or a Note for which LIBOR is an
applicable Interest Rate Basis), if the next
succeeding London Business Day falls in the
next succeeding calendar month, such Interest
Payment Date will be the immediately
preceding London Business Day (as defined
herein). If the date of Maturity of a
Floating Rate Note falls on a day that is not
a Business Day, the payment of principal,
premium, if any, and interest will be made on
the next succeeding Business Day with the
same force and effect as if made on such date
of maturity and no interest on such payment
will accrue for the period from and after
such Maturity to the next succeeding Business
Day. For additional special provisions
relating to Floating Rate Notes, see the
Prospectus and the applicable Pricing
Supplement.
Regular Record Dates. Unless otherwise
provided in the applicable Pricing
Supplement, the "Regular Record Date" with
respect to any Interest Payment Date for a
Floating Rate Note shall be the date 15
calendar days (whether or not a Business Day)
immediately preceding such Interest Payment
Date.
Unless otherwise provided in the applicable
Pricing Supplement, the " Regular Record
Date" for Fixed Rate Notes shall be the April
15 and October 15 immediately preceding such
Interest Payment Date.
Interest Payment Dates. Interest payments
will be made on each Interest Payment Date
commencing with the first Interest
II-6
<PAGE> 39
Payment Date following the Original Issue
Date and on the Maturity Date; provided,
however, the first payment of interest on any
Note originally issued between a Regular
Record Date and the related Interest Payment
Date or on an Interest Payment Date will
occur on the second Interest Payment Date
following the Issue Date of the Note.
Fixed Rate Notes. Unless otherwise provided
in an applicable Fixed Rate Note, interest
payments on Fixed Rate Notes will be made
semiannually on May 1 and November 1, of each
year and at Maturity.
Floating Rate Notes. Interest payments on
Floating Rate Notes will be made as specified
in the related Floating Rate Note and Pricing
Supplement.
Acceptance and
Rejection of Offers
from Solicitation
as Agents: If agreed upon by NCB and any Agent, such
Agent, acting solely as agent for NCB and not
as principal, will solicit purchases of the
Notes. Each Agent will communicate to NCB,
orally or in writing, each offer to purchase
Notes solicited by such Agent on an agency
basis, other than those offers rejected by
such Agent. Each Agent has the right, in its
discretion reasonably exercised, to reject
any proposed purchase of Notes, as a whole or
in part, and any such rejection is not deemed
a breach of such Agent's agreement contained
in the Distribution Agreement. NCB may accept
or reject any proposed purchase of the Notes,
in whole or in part, any such rejection is
not deemed a breach of NCB's agreements
contained in the Distribution Agreement.
Preparation of
Pricing Supplement: If any offer to purchase a Note is accepted
by NCB, NCB will promptly prepare a Pricing
Supplement reflecting the terms of such Note
and file such Pricing Supplement with the
Commission in accordance with Rule 424 under
the Securities Act of 1933 and Rule 901 of
Regulation S-T. Information to be included in
the Pricing Supplement shall include:
1. the name of NCB;
2. the title of the securities, including
series designation, if any;
II-7
<PAGE> 40
3. the date of the Pricing Supplement and
the dates of the Prospectus and
Prospectus Supplement to which the
Pricing Supplement relates;
4. the name of the Offering Agent (as
hereinafter defined);
5. whether such Notes are
being sold to the Offering Agent as
principal or to an investor or other
purchaser through the Offering Agent
acting as agent for NCB;
6. with respect to Notes sold to the
Offering Agent as principal, whether
such Notes will be resold by the
Offering Agent to investors and other
purchasers at (i) a fixed public
offering price of a specified percentage
of their principal amount, (ii) varying
prices related to prevailing market
prices at the time of resale to be
determined by the Offering Agent or
(iii) 100% of their principal amount;
7. with respect to Notes sold to an
investor or other purchaser through the
Offering Agent acting as agent for NCB,
whether such Notes will be sold at (i)
100% of their principal amount or (ii)
another specified percentage of their
principal amount;
8. the Offering Agent's commission or
underwriting discount;
9. net proceeds to NCB;
10. Principal Amount, Specified Currency,
Original Issue Date, Stated Maturity
Date, Authorized Denomination, Interest
Payment Date(s), Initial Redemption
Date, if any, Initial Redemption
Percentage, if any, Annual Redemption
Percentage Reduction, if any, and
Optional Repayment Date or Dates, if
any, Exchange Rate Agent, if any, Day
Count Convention, whether such Note is
an Original Issue Discount Note (and, if
so, the Issue Price), and, in the case
of Fixed Rate Notes, Interest Rate,
Regular Record Date or Dates (if other
than April 15 and October 15 of each
year), and, in the case of Floating Rate
Notes, Interest Rate Basis or Bases,
LIBOR Rueters or LIBOR Telerate (and the
applicable pages), if applicable,
Designated LIBOR Currency, if
applicable, Designated CMT Telerate
Page, and if Telerate Page
II-8
<PAGE> 41
7052, whether the Weekly or Monthly
Average, if applicable, Designated CMT
Maturity Index, if applicable, Index
Maturity, if applicable, Initial
Interest Rate, Maximum Interest Rate, if
any, Minimum Interest Rate, if any,
Initial Interest Reset Date, Interest
Reset Date or Dates, Spread and/or
Spread Multiplier, if any, Calculation
Agent, and Interest Payment Period;
11. the information with respect to the
terms of the Notes set forth below under
"Procedures for Notes Issued in
Book-Entry Form - Settlement
Procedures," items 1, 2, 6, 7, 8 and 9;
and
12. any other provisions of the Notes
material to investors or other
purchasers of the Notes not otherwise
specified in the Prospectus or Pricing
Supplement.
One copy of such filed document will be sent
by telecopy or overnight express (for
delivery by the close of business on the
applicable trade date, but in no event later
than 11:00 a.m., New York City time, on the
Business Day following the applicable trade
date) to the Agent which made or presented
the offer to purchase the applicable Note
(such Agent in such capacity, the "Offering
Agent"), the Trustee, Issuing Agent and the
Paying Agent at the following applicable
address:
if to Credit Suisse First Boston, to:
Eleven Madison Avenue
New York, New York 10010
Facsimile Transmission No. (212) 325-8183
Attention: Short and Medium Term Finance
if to Banc of America Securities LLC, to:
Bank of America Corporate Center
NC1-007-07-01
100 North Tryon Street
Charlotte, NC 28255-0001
Facsimile Transmission No. (704) 388-9939
if to Banc One Capital Markets, Inc.:
One First National Plaza
Chicago, IL 60670
II-9
<PAGE> 42
Facsimile Transmission No. (312) 732-4172
Attention: Corporate Securities
Structuring
if to SPP Capital Partners, LLC:
330 Madison Avenue
28th Floor
New York, New York 10017
Facsimile Transmission No. (212) 455-4545
Attention: Amy Lazarus
if to the Trustee (in such capacity or as
Issuing Agent or Paying Agent), to:
Bank One Trust Company, N.A.
14 Wall Street, 8th Floor
New York, New York 10005
For record keeping purposes, one copy of each
Pricing Supplement, as so filed, shall also
be mailed or telecopied to Brown & Wood LLP
at One World Trade Center, New York, New York
10048, Attention: Daniel M. Rossner.
In each instance that a Pricing Supplement is
prepared, the Offering Agent will provide a
copy of such Pricing Supplement to each
investor or purchaser of the relevant Notes
or its agent. Outdated Pricing Supplements,
and the supplemented Prospectuses to which
they are attached (other than those retained
for files) will be destroyed.
Settlement: The receipt of immediately available funds by
NCB in payment for a Note and the
authentication and delivery of such Note
shall, with respect to such Note, constitute
"settlement." Offers accepted by NCB will be
settled in three Business Days, or at a time
as the purchaser, the applicable Agent and
NCB shall agree, pursuant to the timetable
for settlement set forth in Part II hereof
under "Settlement Procedures" with respect to
Book-Entry Notes (each such date fixed for
settlement is hereinafter referred to as a
"Settlement Date"). If procedures A and B of
the applicable Settlement Procedures with
respect to a particular offer are not
completed on or before the time set forth
under the applicable "Settlement Procedures
Timetable," such offer shall not be settled
until the Business Day following the
completion of settlement procedures A and B
or such later date as the purchaser and NCB
shall agree.
II-10
<PAGE> 43
The foregoing settlement procedures may be
modified, with respect to any purchase of
Notes by an Agent as principal, if so agreed
by NCB and such Agent.
Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached to change
the interest rate or any other variable term
on any Notes being sold by NCB, NCB will
promptly advise the Agents and the Issuing
Agent by facsimile transmission and the
Agents will forthwith suspend solicitation of
offers to purchase such Notes. The Agents
will telephone NCB with recommendations as to
the changed interest rates or other variable
terms. At such time as NCB advises the Agents
and the Issuing Agent by facsimile
transmission of the new interest rates or
other variable terms, the Agents may resume
solicitation of offers to purchase such
Notes. Until such time only "indications of
interest" may be recorded. Immediately after
acceptance by NCB of an offer to purchase
Notes at a new interest rate or new variable
term, NCB, the Offering Agent and the Issuing
Agent shall follow the procedures set forth
under the applicable "Settlement Procedures."
Suspension of
Solicitation;
Amendment or
Supplement: NCB may instruct the Agents to suspend
solicitation of offers to purchase Notes at
any time. Upon receipt of such instructions,
the Agents will forthwith suspend
solicitation of offers to purchase from NCB
until such time as NCB has advised them that
solicitation of offers to purchase may be
resumed. If NCB decides to amend or
supplement the Registration Statement or the
Prospectus (other than to establish or change
interest rates or formulas, maturities,
prices or other similar variable terms with
respect to the Notes or as provided by the
Distribution Agreement), it will promptly
advise the Agents and will furnish the Agents
and their counsel with copies of the proposed
amendment or supplement at the following
applicable address:
if to Credit Suisse First Boston, to:
Eleven Madison Avenue
New York, New York 10010
II-11
<PAGE> 44
Facsimile Transmission No. (212) 325-8183
Attention: Short and Medium Term Finance
if to Banc of America Securities LLC, to:
Bank of America Corporate Center
NC1-007-07-01
100 North Tryon Street
Charlotte, NC 28255-0001
Facsimile Transmission No. (704) 388-9939
if to Banc One Capital Markets, Inc.:
One First National Plaza
Chicago, IL 60670
Facsimile Transmission No. (312) 732-4172
Attention: Corporate Securities
Structuring
if to SPP Capital Partners, LLC:
330 Madison Avenue
28th Floor
New York, New York 10017
Facsimile Transmission No. (212) 455-4545
Attention: Amy Lazarus
if to the Trustee (in such capacity or as
Issuing Agent or Paying Agent), to:
Bank One Trust Company, N.A.
14 Wall Street, 8th Floor
New York, New York 10005
For record keeping purposes, one copy of each
Pricing Supplement, as so filed, shall also
be mailed or telecopied to Brown & Wood LLP
at One World Trade Center, New York, New York
10048, Attention: Daniel M. Rossner.
In the event that at the time the
solicitation of offers to purchase from NCB
is suspended (other than to establish or
change interest rates or formulas,
maturities, prices or other similar variable
terms with respect to the Notes) there shall
be any offers to purchase Notes that have
been accepted by NCB which have not been
settled, NCB will promptly advise the
Offering Agent and the Issuing Agent whether
such offers may
II-12
<PAGE> 45
be settled and whether copies of the
Prospectus as theretofore amended and/or
supplemented as in effect at the time of the
suspension may be delivered in connection
with the settlement of such offers. NCB will
have the sole responsibility for such
decision and for any arrangements which may
be made in the event that NCB determines that
such offers may not be settled or that copies
of such Prospectus may not be so delivered.
Delivery of Prospectus
and applicable
Pricing Supplement: A copy of the most recent Prospectus and the
applicable Pricing Supplement must accompany
or precede the earlier of (a) the written
confirmation of a sale sent to an investor or
other purchaser or its agent and (b) the
delivery of Notes to an investor or other
purchaser or its agent.
Authenticity of
Signatures: The Agents will have no obligation or
liability to NCB, the Trustee, the Issuing
Agent or the Paying Agent in respect of the
authenticity of the signature of any officer,
employee or agent of NCB, the Trustee, the
Issuing Agent or the Paying Agent on any
Note.
Documents Incorporated
by Reference: At the Agent's request NCB shall supply the
Agents with an adequate supply of all
documents incorporated by reference in the
Registration Statement and the Prospectus.
Business Day: Unless otherwise provided in the Notes,
"Business Day" means, with respect to any
Note, any other than Saturday, Sunday or
other day on which banking institutions in
The City of New York are authorized or
obligated by law, regulation or executive
order to close; provided, however, that with
respect to Foreign Currency Notes (other than
Foreign Currency Notes denominated in Euro
only) any day that is a Business Day both in
New York and in the Principal Financial
Center (as defined below) in the country of
the Specified Currency unless the Specified
Currency is Euro, in which case such date is
also a day on which the Trans-European
Automated Real-Time Gross Settlement Express
Transfer (TARGET) System is open; provided
further, that, with respect to LIBOR Notes
only, any Business Day in New York that is
also a London Business Day. "London Business
Day" means any day on which dealings in
deposits in U.S. dollars are transacted in
the London interbank
II-13
<PAGE> 46
market. It being understood that if no such
currency or composite currency is specified
in the applicable Pricing Supplement, the
Index Currency shall be U.S. dollars.
"Principal Financial Center" means the
capital city of the country issuing the
Specified Currency, except that with respect
to United States dollars, Australian dollars,
Deutsche marks, Dutch guilders, Italian lire
and Swiss francs, the Principal Financial
Center shall be The City of New York, Sydney
(and, solely in the case of the Specified
Currency, Melbourne), Frankfurt, Amsterdam,
Milan and Zurich, respectively.
Designated LIBOR
Currency "Index Currency" means the currency or
composite currency specified in the
applicable Pricing Supplement as to which
LIBOR shall be calculated. If no such
currency or Designated LIBOR Currency is
specified in the applicable Pricing
Supplement, the Designated LIBOR Currency
shall be United States dollars.
II-14
<PAGE> 47
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in book-entry
form for eligibility in the book-entry system maintained by DTC, the Issuing
Agent will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter of
Representations from NCB and the Issuing Agent to DTC, dated January __, 2000,
and a Certificate of Deposit Agreement, dated _______, between the Issuing Agent
and DTC, as amended (the "Certificate Agreement"), and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry
form having the same Original Issue Date,
Specified Currency, Interest Rate, Default
Rate, Interest Payment Dates, Day Count
Convention, Redemption and/or Repayment
terms, if any, and Stated Maturity Date
(collectively, the "Fixed Rate Terms") will
be represented initially by a single
Book-Entry Note; and all Floating Rate Notes
issued in book-entry form having the same
Original Issue Date, Specified Currency,
Interest Category, formula for the
calculation of interest, and specifying the
Interest Rate Basis or Bases, which may be
the CD Rate, the CMT Rate, the Commercial
Paper Rate, the Federal Funds Rate, LIBOR,
the Prime Rate or the Treasury Rate or any
other interest rate basis or formula, Initial
Interest Rate, Default Rate, Index Maturity,
Spread and/or Spread Multiplier, if any, Day
Count Convention, Minimum Interest Rate, if
any, Maximum Interest Rate, if any,
redemption and/or repayment terms, if any,
Interest Payment Dates, Initial Interest
Reset Date, Interest Reset Dates and Stated
Maturity Date (collectively, "Floating Rate
Terms") will be represented initially by a
single Book-Entry Note.
Each Book-Entry Note will be dated and issued
as of the date of its authentication by the
Issuing Agent. The date from which interest
will begin to accrue with respect to each
Book-Entry Note will be (a) with respect to
an original Book-Entry Note (or any portion
thereof), its Original Issue Date and (b)
with respect to any Book-Entry Note (or
portion thereof) issued subsequently upon
exchange of a Book-Entry Note or in lieu of a
destroyed, lost or stolen Book-Entry Note,
the most recent Interest Payment Date to
which interest has been paid or duly provided
for on the predecessor Book-Entry Note or
Notes (or if no such payment or provision has
been made, the Original Issue Date of the
predecessor Book-Entry Note or Notes),
II-15
<PAGE> 48
regardless of the date of authentication of
such subsequently issued Book-Entry Note. No
Book-Entry Note shall represent any Note
issued in certificated form.
For other variable terms with respect to the
Fixed Rate Notes and Floating Rate Notes, see
the Prospectus and the applicable Pricing
Supplement.
Except as provided in the applicable
Indenture, no owner of a beneficial interest
in a Book-Entry Note shall be entitled to
receive any Note issued in certificated form.
Identification: NCB has arranged with the CUSIP Service
Bureau of Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the reservation
of two series of CUSIP numbers, each of which
consists of approximately 900 CUSIP numbers
which have been reserved for and relate to
Book-Entry Notes and NCB has delivered to
each of the Trustee, the Issuing Agent and
DTC a list of such CUSIP numbers. NCB will
assign CUSIP numbers to Book-Entry Notes as
described below under Settlement Procedure B.
DTC will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that NCB
has assigned to Book-Entry Notes. The Trustee
or the Issuing Agent, as the case may be,
will notify NCB at any time when fewer than
100 of the reserved CUSIP numbers of either
series remain unassigned to Book-Entry Notes,
and, if it deems necessary, NCB will reserve
and obtain additional CUSIP numbers for
assignment to Book-Entry Notes. Upon
obtaining such additional CUSIP numbers, NCB
will deliver a list of such additional
numbers to the Trustee, the Issuing Agent and
DTC. An issue of Notes having an aggregate
principal amount in excess of $200,000,000
(or the equivalent thereof in one or more
foreign or composite currencies) and
otherwise required to be represented by the
same Book-Entry Note will instead be
represented by two or more Book-Entry Notes
which shall all be assigned the same CUSIP
number.
Registration: Unless otherwise specified by DTC, all
Book-Entry Notes will be registered in the
name of Cede & Co., as nominee for DTC, on
the register maintained by the Issuing Agent
under the Indenture. The beneficial owner of
a Note issued in book-entry form (i.e., an
owner of a beneficial interest in a
Book-Entry Note) (or one or more indirect
participants in DTC designated by such owner)
will designate one or more participants in
DTC
II-16
<PAGE> 49
(with respect to such Note issued in
book-entry form, the "Participants") to act
as agent for such beneficial owner in
connection with the book-entry system
maintained by DTC, and DTC will record in
book-entry form, in accordance with
instructions provided by such Participants, a
credit balance with respect to such Note
issued in book-entry form in the account of
such Participants. The ownership interest of
such beneficial owner in such Note issued in
book-entry form will be recorded through the
records of such Participants or through the
separate records of such Participants and one
or more indirect participants in DTC.
Transfers: Transfers of beneficial ownership interests
in a Book-Entry Note will be accomplished by
book entries made by DTC and, in turn, by
Participants (and, in certain cases, one or
more indirect participants in DTC) acting on
behalf of beneficial transferors and
transferees of such Book-Entry Note.
Exchanges: The Issuing Agent may deliver to DTC and the
CUSIP Service Bureau at any time a written
notice specifying (a) the CUSIP numbers of
two or more Book-Entry Notes outstanding on
such date that represent Notes having the
same Fixed Rate Terms or Floating Rate Terms,
as the case may be (other than Original Issue
Dates), and for which interest has been paid
to the same date; (b) a date, occurring at
least 30 days after such written notice is
delivered and at least 30 days before the
next Interest Payment Date for the related
Notes issued in book-entry form, on which
such Book-Entry Notes shall be exchanged for
a single replacement Book-Entry Note; and (c)
a new CUSIP number, obtained from NCB, to be
assigned to such replacement Book-Entry Note.
Upon receipt of such a notice, DTC will send
to its Participants (including the Issuing
Agent) a written reorganization notice to the
effect that such exchange will occur on such
date. Prior to the specified exchange date,
the Issuing Agent will deliver to the CUSIP
Service Bureau written notice setting forth
such exchange date and the new CUSIP number
and stating that, as of such exchange date,
the CUSIP numbers of the Book-Entry Notes to
be exchanged will no longer be valid. On the
specified exchange date, the Issuing Agent
will exchange such Book-Entry Notes for a
single Book-Entry Note bearing the new CUSIP
number and the CUSIP numbers of the exchanged
Book-Entry Notes will, in accordance with
CUSIP Service Bureau procedures, be canceled
and not immediately reassigned.
Notwithstanding the
II-17
<PAGE> 50
foregoing, if the Book-Entry Notes to be
exchanged exceed $200,000,000 (or the
equivalent thereof in one or more foreign or
composite currencies) in aggregate principal
amount, one replacement Book-Entry Note will
be authenticated and issued to represent each
$200,000,000 (or the equivalent thereof in
one or more foreign or composite currencies)
of principal amount of the exchanged
Book-Entry Notes and an additional Book-Entry
Note or Notes will be authenticated and
issued to represent any remaining principal
amount of such Book-Entry Notes (See
"Denominations" below).
Denominations: Unless otherwise provided in the applicable
Pricing Supplement, Notes issued in
book-entry form will be issued in
denominations of $1,000 and integral
multiples of $1,000 in excess thereof.
Book-Entry Notes will be denominated in
principal amounts not in excess of
$200,000,000 (or the equivalent thereof in
one or more foreign or composite currencies).
If one or more Notes issued in book-entry
form having an aggregate principal amount in
excess of $200,000,000 (or the equivalent
thereof in one or more foreign or composite
currencies) would, but for the preceding
sentence, be represented by a single
Book-Entry Note, then one Book-Entry Note
will be issued to represent each $200,000,000
(or the equivalent thereof in one or more
foreign or composite currencies) principal
amount of such Note or Notes issued in
book-entry form and an additional Book-Entry
Note or Notes will be issued to represent any
remaining principal amount of such Note or
Notes issued in book-entry form. In such a
case, each of the Book-Entry Notes shall all
be assigned the same CUSIP number.
Payments of Principal
and Interest: Payments of Interest Only. Promptly after
each Regular Record Date, the Issuing Agent
will deliver to NCB and DTC a written notice
specifying by CUSIP number the amount of
interest to be paid on each Book-Entry Note
on the following Interest Payment Date (other
than an Interest Payment Date coinciding with
Maturity) and the total of such amounts. DTC
will confirm the amount payable on each
Book-Entry Note on such Interest Payment Date
by reference to the daily bond reports
published by Standard & Poor's Corporation.
On such Interest Payment Date, NCB will pay
to the Issuing Agent in immediately available
funds an amount sufficient to pay the
interest then due and owing, and upon receipt
of such funds
II-18
<PAGE> 51
from NCB, the Issuing Agent in turn will pay
to DTC, such total amount of interest due on
such Book-Entry Notes (other than at
Maturity) which is payable in U.S. dollars,
at the times and in the manner set forth
below under "Manner of Payment." The Issuing
Agent shall make payment of that amount of
interest due and owing on any Book-Entry
Notes that Participants have elected to
receive in foreign or composite currencies
directly to such Participants.
Notice of Interest Rates and Regular Record
Dates. Promptly after each Interest
Determination Date, or Calculation Date, as
the case may be, for Floating Rate Notes
issued in book-entry form, the Issuing Agent
will notify each of Moody's Investors
Service, Inc. and Standard & Poor's
Corporation of the interest rates determined
on such Interest Determination Date.
Payments at Maturity. On or about the first
Business Day of each month, the Issuing Agent
will deliver to NCB and DTC a written list of
principal, premium, if any, and interest to
be paid on each Book-Entry Note maturing
either at the Stated Maturity Date, on a
Redemption Date in, or for which an Option to
Elect Repayment has been received with
respect to, such month. The Issuing Agent,
NCB and DTC will confirm the amounts of such
principal, premium, if any, and interest
payments with respect to a Book-Entry Note on
or about the fifth Business Day preceding the
Maturity of such Book-Entry Note. At such
Maturity, NCB will pay to the Issuing Agent
in immediately available funds an amount
sufficient to make such Maturity payment, and
upon receipt of such funds the Issuing Agent
in turn will pay to DTC, the principal amount
of such Note, together with interest and
premium, if any, due at such Maturity, which
are payable in U.S. dollars, at the times and
in the manner set forth below under "Manner
of Payment." The Issuing Agent shall make the
payment of the principal, premium, if any,
and interest to be paid at the Maturity of
each Book-Entry Note that Participants have
elected to receive in foreign or composite
currencies directly to such Participants.
Promptly after (i) payment to DTC of the
principal, premium, if any, and interest due
at the Maturity of such Book-Entry Note which
are payable in U.S. dollars and (ii) payment
of principal, premium, if any, and interest
due at the Maturity of such Book-Entry Note
to those Participants who have elected to
receive such payments in foreign or composite
currencies, the Issuing Agent will cancel
such Book-Entry Note and
II-19
<PAGE> 52
deliver it to NCB with an appropriate debit
advice. On the first Business Day of each
month, the Issuing Agent will deliver to NCB
a written statement indicating the total
principal amount of outstanding Book-Entry
Notes as of the close of business on the
immediately preceding Business Day.
Manner of Payment. The total amount of any
principal, premium, if any, and interest due
on Book-Entry Notes on any Interest Payment
Date or at Maturity, as the case may be,
which is payable in U.S. dollars shall be
paid by NCB to the Issuing Agent in funds
available for use by the Issuing Agent no
later than 10:00 a.m., New York City time, on
such date. NCB will make such payment on such
Book-Entry Notes to an account specified by
the Issuing Agent. Upon receipt of such
funds, the Issuing Agent will pay by separate
wire transfer (using Fedwire message entry
instructions in a form previously specified
by DTC) to an account at the Federal Reserve
Bank of New York previously specified by DTC,
in funds available for immediate use by DTC,
each payment in U.S. dollars of principal,
premium, if any, and interest, due on a
Book-Entry Note on such date. Thereafter on
such date, DTC will pay, in accordance with
its SDFS operating procedures then in effect,
such amounts in funds available for immediate
use to the respective Participants in whose
names the beneficial interests in such Notes
are recorded in the book-entry system
maintained by DTC. Neither NCB, the Issuing
Agent nor the Trustee shall have any
responsibility or liability for the payment
in U.S. dollars by DTC of the principal of,
premium, if any, or interest on, the
Book-Entry Notes to such Participants. The
Issuing Agent shall make all payments of
principal, premium, if any, and interest on
each Book-Entry Note that Participants have
elected to receive in foreign or composite
currencies directly to such Participants.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Note will be
determined and withheld by the Participant,
indirect participant in DTC or other Person
responsible for forwarding payments and
materials directly to the beneficial owner of
such Note.
II-20
<PAGE> 53
Settlement
Procedures: Settlement Procedures with regard to each
Note in book-entry form purchased by an
Agent, as principal, or sold through an
Agent, as agent of NCB, will be as follows:
A. The Offering Agent will advise NCB by
telephone, confirmed by facsimile, of
the following Settlement information:
1. Principal Amount, Authorized
Denomination, Specified Currency
and Original Issue Date of the
Note.
2. Exchange Rate Agent, if any.
3. Whether such Notes are Senior Notes
or Subordinated Notes.
4. (a) Fixed Rate Notes:
(i) Interest Rate
(ii) Interest Payment Dates
(b) Floating Rate Notes:
(i) Interest Category
(ii) Interest Rate Basis or
Bases
(iii) Initial Interest Rate
(iv) Spread and/or Spread
Multiplier, if any
(v) Initial Interest Reset
Date
(vi) Interest Rate Reset Period
(vii) Interest Reset Date or
Dates
(viii) Interest Payment Dates
(ix) Interest Payment Period
(x) Regular Record Dates
II-21
<PAGE> 54
(xi) Index Maturity, if any
(xii) Maximum and/or Minimum
Interest Rates, if any
(xiii) Day Count Convention
(xiv) Calculation Agent
(xv) If LIBOR, indicate LIBOR
Reuters or LIBOR Telerate
(xvi) If CMT Rate, indicate
Designated CMT Telerate
Page and Designated CMT
Maturity Index
5. Price to public, if any, of the
Note (or whether the Note is being
offered at varying prices relating
to prevailing market prices at time
of resale as determined by the
Offering Agent).
6. Trade Date.
7. Settlement Date (Original Issue
Date).
8. Stated Maturity Date.
9. Redemption provisions, if any,
including: Initial Redemption Date,
Initial Redemption Percentage and
Annual Redemption Percentage
Reduction.
10. Repayment provisions, if any.
11. Default Rate, if any.
12. Optional Repayment Date(s).
13. Net proceeds to NCB.
14. The Offering Agent's commission or
underwriting discount.
15. Whether such Notes are
being sold to the Offering Agent as
principal or to an investor or
other purchaser through the
Offering Agent acting as agent for
NCB.
II-22
<PAGE> 55
16. Whether such Note is a Discount
Note and the terms thereof.
17. Such other information specified
with respect to the Notes (whether
by Addendum or otherwise).
B. NCB will assign a CUSIP number to the
Book-Entry Note representing such Note
and then advise the Issuing Agent by
facsimile transmission or other
electronic transmission of the above
settlement information received from the
Offering Agent, such CUSIP number and
the name of the Offering Agent. NCB will
also advise the Offering Agent of the
CUSIP number assigned to the Book-Entry
Note.
C. The Issuing Agent will communicate to
DTC and the Offering Agent through DTC's
Participant Terminal System, a pending
deposit message specifying the following
settlement information:
1. The information set forth in the
Settlement Procedure A.
2. Identification numbers of the
participant accounts maintained by
DTC on behalf of the Issuing Agent
and the Offering Agent.
3. Identification of the Book-Entry
Note as a Fixed Rate Book-Entry
Note or Floating Rate Book-Entry
Note.
4. Initial Interest Payment Date for
such Note, number of days by which
such date succeeds the related
record date for DTC purposes (or,
in the case of Floating Rate Notes
which reset daily or weekly, the
date five calendar days preceding
the Interest Payment Date) and, if
then calculable, the amount of
interest payable on such Interest
Payment Date (which amount shall
have been confirmed by the Issuing
Agent).
5. CUSIP number of the Book-Entry Note
representing such Note.
II-23
<PAGE> 56
6. Whether such Book-Entry Note
represents any other Notes issued
or to be issued in book-entry form.
DTC will arrange for each pending
deposit message described above to be
transmitted to Standard & Poor's
Corporation, which will use the
information in the message to include
certain terms of the related Book-Entry
Note in the appropriate daily bond
report published by Standard & Poor's
Corporation.
D. The Issuing Agent will complete and
authenticate the Book-Entry Note
representing such Note.
E. DTC will credit such Note to the
participant account of the Issuing Agent
maintained by DTC.
F. The Issuing Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to
debit such Note to the Issuing Agent's
participant account and credit such Note
to the participant account of the
Offering Agent maintained by DTC and
(ii) to debit the settlement account of
the Offering Agent and credit the
settlement account of the Issuing Agent
maintained by DTC, in an amount equal to
the price of such Note less such
Offering Agent's discount or
underwriting commission, as applicable.
Any entry of such a deliver order shall
be deemed to constitute a representation
and warranty by the Issuing Agent to DTC
that (i) the Book-Entry Note
representing such Note has been issued
and authenticated and (ii) the Issuing
Agent is holding such Book-Entry Note
pursuant to the Certificate Agreement.
G. In the case of Book-Entry Notes sold
through the Offering Agent, as agent,
the Offering Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to
debit such Note to the Offering Agent's
participant account and credit such Note
to the participant account of the
Participants maintained by DTC and (ii)
to debit the settlement accounts of such
Participants and credit the settlement
account of the Offering Agent maintained
by DTC in an amount equal to the initial
public offering price of such Note.
II-24
<PAGE> 57
H. Transfers of funds in accordance with
SDFS deliver orders described in
Settlement Procedures F and G will be
settled in accordance with SDFS
operating procedures in effect on the
Settlement Date.
I. Upon receipt, the Issuing Agent will pay
NCB, by wire transfer of immediately
available funds to an account specified
by NCB to the Issuing Agent from time to
time, in the amount transferred to the
Issuing Agent in accordance with
Settlement Procedure F.
J. The Issuing Agent will send a copy of
the Book-Entry Note by first class mail
to NCB together with a statement setting
forth the principal amount of Notes
outstanding as of the related Settlement
Date after giving effect to such
transaction and all other offers to
purchase Notes of which NCB has advised
the Issuing Agent but which have not yet
been settled.
K. If the Note was sold through the
Offering Agent, as agent, the Offering
Agent will confirm the purchase of such
Note to the investor or other purchaser
either by transmitting to the
Participant with respect to such Note a
confirmation order through DTC's
Participant Terminal System or by
mailing a written confirmation to such
investor or other purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted by NCB,
Settlement Procedures "A" through "K" set
forth above shall be completed as soon as
possible following the trade but not later
than the respective times (New York City
time) set forth below:
SETTLEMENT
PROCEDURE TIME
A 11:00 a.m. on the trade date
or within one hour following
the trade
B 12:00 noon on the trade date
or within one hour following
the trade
C No later than the close of
business on the trade date
II-25
<PAGE> 58
D 9:00 a.m. on Settlement Date
E 10:00 a.m. on Settlement
Date
F-G No later than 2:00 p.m. on
Settlement Date
H 4:00 p.m. on Settlement Date
I-K 5:00 p.m. on Settlement Date
If a sale is to be settled more than one
Business Day after the trade date, Settlement
Procedures A, B, and C may, if necessary, be
completed at any time prior to the specified
times on the first Business Day after such
trade date.
Settlement Procedure H is subject to
extension in accordance with any extension of
Fedwire closing deadlines and in the other
events specified in the SDFS operating
procedures in effect on the Settlement Date.
If settlement of a Note issued in book-entry
form is rescheduled or canceled, the Issuing
Agent will deliver to DTC, through DTC's
Participant Terminal System, a cancellation
message to such effect by no later than 5:00
p.m., New York City time, on the Business Day
immediately preceding the scheduled
Settlement Date.
Failure to Settle: If the Issuing Agent fails to enter an SDFS
deliver order with respect to a Book-Entry
Note issued in book-entry form pursuant to
Settlement Procedure F, the Issuing Agent may
deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable a
withdrawal message instructing DTC to debit
such Note to the participant account of the
Issuing Agent maintained at DTC. DTC will
process the withdrawal message, provided that
such participant account contains a principal
amount of the Book-Entry Note representing
such Note that is at least equal to the
principal amount to be debited. If withdrawal
messages are processed with respect to all
the Notes represented by a Book-Entry Note,
the Issuing Agent will mark such Book-Entry
Note "canceled," make appropriate entries in
its records and send certification of
destruction of such canceled Book-Entry Note
to NCB. The CUSIP number assigned to such
Book-Entry Note shall, in accordance with
CUSIP Service Bureau procedures, be canceled
and not
II-26
<PAGE> 59
immediately reassigned. If withdrawal
messages are processed with respect to a
portion of the Notes represented by a
Book-Entry Note, the Issuing Agent will
exchange such Book-Entry Note for two
Book-Entry Notes, one of which shall
represent the Book-Entry Notes for which
withdrawal messages are processed and shall
be canceled immediately after issuance, and
the other of which shall represent the other
Notes previously represented by the
surrendered Book-Entry Note and shall bear
the CUSIP number of the surrendered
Book-Entry Note.
In the case of any Note in book-entry form
sold through the Offering Agent, as agent, if
the purchase price for any Book-Entry Note is
not timely paid to the Participants with
respect to such Note by the beneficial
investor or other purchaser thereof (or a
person, including an indirect participant in
DTC, acting on behalf of such investor or
other purchaser), such Participants and, in
turn, the related Offering Agent may enter
SDFS deliver orders through DTC's Participant
Terminal System reversing the orders entered
pursuant to Settlement Procedures F and G,
respectively. Thereafter, the Issuing Agent
will deliver the withdrawal message and take
the related actions described in the
preceding paragraph. If such failure shall
have occurred for any reason other than
default by the applicable Offering Agent to
perform its obligations hereunder or under
the Distribution Agreement, NCB will
reimburse such Offering Agent on an equitable
basis for its reasonable loss of the use of
funds during the period when the funds were
credited to the account of NCB.
Notwithstanding the foregoing, upon any
failure to settle with respect to a
Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating procedures
then in effect. In the event of a failure to
settle with respect to a Note that was to
have been represented by a Book-Entry Note
also representing other Notes, the Issuing
Agent will provide, in accordance with
Settlement Procedure D, for the
authentication and issuance of a Book-Entry
Note representing such remaining Notes and
will make appropriate entries in its records.
II-27
<PAGE> 60
ANNEX III
ACCOUNTANTS' LETTER
Pursuant to Sections 4(j) and 6(d), as the case may be, of the
Distribution Agreement, the Bank's independent certified public accountants
shall furnish letters to the effect that:
(i) They are independent certified public accountants with
respect to the Bank and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information and/or
condensed financial statements derived from audited financial
statements of the Bank for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been
furnished to the Agents and are attached hereto;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public
Accountants of the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included in the Bank's
quarterly report on Form 10-Q incorporated by reference into the
Prospectus as indicated in their reports thereon copies of which are
attached hereto; and on the basis of specified procedures including
inquiries of officials of the Bank who have responsibility for
financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act
and the related published rules and regulations, nothing came to
their attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as to form
in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Bank for the five most recent fiscal years included
in the Prospectus and included or incorporated by reference in Item
6 of the Bank's Annual Report on Form 10-K for the most recent
fiscal year agrees with the corresponding amounts (after restatement
where applicable) in the
III-1
<PAGE> 61
audited consolidated financial statements for five such fiscal years
which were included or incorporated by reference in the Bank's
Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus
under selected captions with the disclosure requirements of
Regulation S-K and on the basis of limited procedures specified in
such letter nothing came to their attention as a result of the
foregoing procedures that caused them to believe that this
information does not conform in all material respects with the
disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of the
latest available interim financial statements of the Bank and its
subsidiaries, inspection of the minute books of the Bank and its
subsidiaries since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus,
inquiries of officials of the Bank and its subsidiaries responsible
for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference in the
Bank's Quarterly Reports on Form 10-Q incorporated by reference
in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act and the related published rules and regulations,
or (ii) any material modifications should be made to the
unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus or included in the Bank's
Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus for them to be in conformity with generally accepted
accounting principles;
(B) (ii) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in
the Bank's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and
III-2
<PAGE> 62
balance sheet items included in the Prospectus and referred to
in clause (B) were not determined on a basis substantially
consistent with the basis for the audited financial statements
included or incorporated by reference in the Bank's Annual
Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act
and the published rules and regulations thereunder or the pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus) or any increase in
the consolidated long-term debt of the Bank and its
subsidiaries, or any decreases in consolidated net current
assets or stockholders' equity or other items specified by the
Agents, or any increases in any items specified by the Agents,
in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in clause (E)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the Agents,
or any increases in any items specified by the Agents, in each
case as compared with the comparable period of the preceding
year and with any other period of corresponding length
specified by the Agents, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an audit
in accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial information
specified by the Agents which are derived from the general
accounting records of the Bank and its subsidiaries, which appear in
the Prospectus (excluding documents incorporated by reference), or
in Part II of, or in
III-3
<PAGE> 63
exhibits and schedules to, the Registration Statement specified by
the Agents or in documents incorporated by reference in the
Prospectus specified by the Agents, and have compared certain of
such amounts, percentages and financial information with the
accounting records of the Bank and its subsidiaries and have found
them to be in agreement.
All references in this Annex III to the Prospectus shall be
deemed to refer to the Prospectus (including the documents incorporated by
reference therein) as defined in the Distribution Agreement as of the
Commencement Date referred to in Section 6(d) thereof and to the Prospectus as
amended or supplemented (including the documents incorporated by reference
therein) as of the date of the amendment, supplement, incorporation or the Time
of Delivery relating to the Terms Agreement requiring the delivery of such
letter under Section 4(j) thereof.
III-4
<PAGE> 1
EXHIBIT 4.1
NATIONAL CONSUMER COOPERATIVE BANK,
Issuer
to
BANK ONE TRUST COMPANY, N.A.,
Trustee
---------------
INDENTURE
---------------
Dated as of January 7, 2000
Subordinated Securities
<PAGE> 2
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
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
</TABLE>
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
<TABLE>
<CAPTION>
Page
----
<S> <C>
Recitals..........................................................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions...........................................................................................2
Act...............................................................................................................2
Additional Amounts................................................................................................2
Affiliate.........................................................................................................2
Authenticating Agent..............................................................................................3
Authorized Newspaper..............................................................................................3
Bearer Security...................................................................................................3
Board of Directors................................................................................................3
Board Resolution..................................................................................................3
Business Day......................................................................................................3
Cedel.............................................................................................................3
Commission........................................................................................................3
Common Stock......................................................................................................3
Conversion Event..................................................................................................4
Corporate Trust Office............................................................................................4
Corporation.......................................................................................................4
Coupon............................................................................................................4
Currency..........................................................................................................4
CUSIP number......................................................................................................4
Defaulted Interest................................................................................................4
Dollars or $......................................................................................................4
Euroclear.........................................................................................................4
Event of Default..................................................................................................4
Foreign Currency..................................................................................................4
GAAP..............................................................................................................4
Government Obligations............................................................................................4
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
</TABLE>
iii
<PAGE> 4
<TABLE>
<S> <C>
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..................................................................................................8
Predecessor Security..............................................................................................8
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...............................................................................................9
Special Record Date...............................................................................................9
Stated Maturity..................................................................................................10
Subsidiary.......................................................................................................10
Trust Indenture Act..............................................................................................10
Trustee..........................................................................................................10
United States....................................................................................................10
United States Alien..............................................................................................10
U.S. Depository or Depository....................................................................................10
Vice President...................................................................................................11
Section 102. Compliance Certificates and Opinions.................................................................11
Section 103. Form of Documents Delivered to Trustee...............................................................11
Section 104. Acts of Holders......................................................................................11
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..................................................................................15
Section 112. Benefits of Indenture................................................................................16
Section 113. Governing Law........................................................................................16
</TABLE>
iv
<PAGE> 5
<TABLE>
<S> <C>
Section 114. Legal Holidays.......................................................................................16
Section 115. Counterparts.........................................................................................16
Section 116. Judgment Currency....................................................................................16
</TABLE>
ARTICLE TWO
SECURITIES FORMS
<TABLE>
<S> <C>
Section 201. Forms Generally......................................................................................17
Section 202. Form of Trustee's Certificate of Authentication......................................................17
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...................................................41
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee......................................42
Section 504. Trustee May File Proofs of Claim.....................................................................43
Section 505. Trustee May Enforce Claims without Possession of Securities or Coupons...............................44
Section 506. Application of Money Collected.......................................................................44
Section 507. Limitations on Suits.................................................................................45
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Section 508. Unconditional Right of Holders to Receive Principal and any Premium, Interest and
Additional Amounts................................................................................45
Section 509. Restoration of Rights and Remedies...................................................................46
Section 510. Rights and Remedies Cumulative.......................................................................46
Section 511. Delay or Omission Not Waiver.........................................................................46
Section 512. Control by Holders of Securities.....................................................................46
Section 513. Waiver of Past Defaults..............................................................................47
Section 514. Waiver of Stay or Extension Laws.....................................................................47
Section 515. Undertaking for Costs................................................................................47
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee............................................................................48
Section 602. Notice of Defaults...................................................................................49
Section 603. Not Responsible for Recitals or Issuance of Securities...............................................49
Section 604. May Hold Securities..................................................................................50
Section 605. Money Held in Trust..................................................................................50
Section 606. Compensation and Reimbursement.......................................................................50
Section 607. Corporate Trustee Required...........................................................................51
Section 608. Resignation and Removal; Appointment of Successor....................................................51
Section 609. Acceptance of Appointment by Successor...............................................................53
Section 610. Merger, Conversion, Consolidation or Succession to Business..........................................54
Section 611. Appointment of Authenticating Agent..................................................................54
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND ISSUER
Section 701. Issuer to Furnish Trustee Names and Addresses of Holders.............................................56
Section 702. Preservation of Information; Communications to Holders...............................................56
Section 703. Reports by Trustee...................................................................................57
Section 704. Reports by Issuer....................................................................................57
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Issuer May Consolidate, Etc..........................................................................58
Section 802. Successor Person Substituted for Issuer..............................................................59
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
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Section 901. Supplemental Indentures without Consent of Holders...................................................59
Section 902. Supplemental Indentures with Consent of Holders......................................................60
Section 903. Execution of Supplemental Indentures.................................................................61
Section 904. Effect of Supplemental Indentures....................................................................62
Section 905. Reference in Securities to Supplemental Indentures...................................................62
Section 906. Conformity with Trust Indenture Act..................................................................62
Section 907. Effect on Senior Indebtedness........................................................................62
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, any Premium, Interest and Additional Amounts..................................62
Section 1002. Maintenance of Office or Agency.....................................................................63
Section 1003. Money for Securities Payments to Be Held in Trust...................................................64
Section 1004. Additional Amounts..................................................................................66
Section 1005. Corporate Existence.................................................................................66
Section 1006. Waiver of Certain Covenants.........................................................................67
Section 1007. Issuer Statement as to Compliance; Notice of Certain Defaults.......................................67
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article............................................................................68
Section 1102. Election to Redeem; Notice to Trustee...............................................................68
Section 1103. Selection by Trustee of Securities to be Redeemed...................................................68
Section 1104. Notice of Redemption................................................................................69
Section 1105. Deposit of Redemption Price.........................................................................70
Section 1106. Securities Payable on Redemption Date...............................................................70
Section 1107. Securities Redeemed in Part.........................................................................71
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article............................................................................72
Section 1202. Satisfaction of Sinking Fund Payments with Securities...............................................72
Section 1203. Redemption of Securities for Sinking Fund...........................................................73
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ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
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Section 1301. Applicability of Article............................................................................73
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article............................................................................74
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called...........................................................74
Section 1502. Call, Notice and Place of Meetings..................................................................74
Section 1503. Persons Entitled to Vote at Meetings................................................................75
Section 1504. Quorum; Action......................................................................................75
Section 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings.................................76
Section 1506. Counting Votes and Recording Action of Meetings.....................................................77
ARTICLE SIXTEEN
SUBORDINATION
Section 1601. Agreement to Subordinate............................................................................77
Section 1602. Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities..............78
Section 1603. No Payment on Securities in Event of Default on Senior Indebtedness.................................80
Section 1604. Payments on Securities Permitted....................................................................81
Section 1605. Authorization of Holders to Trustee to Effect Subordination.........................................81
Section 1606. Notices to Trustee..................................................................................81
Section 1607. Trustee as Holder of Senior Indebtedness............................................................82
Section 1608. Modifications of Terms of Senior Indebtedness.......................................................82
Section 1609. Reliance on Judicial Order or Certificate of Liquidating Agent......................................83
Section 1610. Article Sixteen Not to Prevent Events of Default....................................................83
</TABLE>
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<PAGE> 9
INDENTURE, dated as of January 7, 2000 (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 Banc One Plaza, Global Corporate Trust, 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 requhereby
or by any Security, under circumstances specified herein or therein, to be paid
by the Issuer in respect of certain taxes, assessments or other governmental
charges imposed on Holders specified therein and which are owing to such
Holders.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or
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<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.
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<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
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<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
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<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.
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<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;
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<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
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<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.
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"Stated Maturity", with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due
and payable.
"Subsidiary" means any Corporation of which at the time of
determination the Issuer or one or more Subsidiaries owns or controls directly
or indirectly more than 50% of the shares of Voting Stock.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; provided, however, that if at any time there
is more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean the Trustee with
respect to the Securities of such series.
"United States", except as otherwise provided in or pursuant to this
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to
this Indenture or any Security, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or
a non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depository" or "Depository" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository or Depository by the Issuer in or pursuant to
this Indenture, which Person must be, to the extent required by applicable law
or regulation, a clearing agency registered under the Securities Exchange Act
of 1934, as amended, and, if so provided with respect to any Security, any
successor to such Person. If at any time there is more than one such Person,
"U.S. Depository" or "Depository" shall mean, with respect to any Securities,
the qualifying entity which has been appointed with respect to such Securities.
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"Vice President", when used with respect to the Issuer or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President".
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Issuer to the Trustee to take any action under
any provision of this Indenture, the Issuer shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such
documents or any of them is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Issuer may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
opinion with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Issuer stating that the
information with respect to such factual matters is in the possession of the
Issuer unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
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
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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.
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(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.
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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.
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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.
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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
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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.
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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.
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ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto,
(1) the title of such Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the Securities of
such title or the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu
of, other Securities of such series pursuant to Section 304, 305, 306, 905
or 1107, upon repayment on part of any Registered Security of such series
pursuant to Article Thirteen, upon surrender in part of any Registered
Security for conversion or exchange into other securities pursuant to its
terms, or pursuant to the terms of such Securities);
(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);
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(6) if any of such Securities are to be issuable as Bearer Securities,
whether interest in respect of any portion of a temporary Bearer Security
in global form payable in respect of an Interest Payment Date therefor
prior to the exchange, if any, of such temporary Bearer Security for
definitive Securities shall be paid to any clearing organization with
respect to the portion of such temporary Bearer Security held for its
account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment received
by a clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date;
(7) the date or dates, or the method or methods, if any, by which such
date or dates shall be determined, on which the principal of such
Securities is payable;
(8) the rate or rates at which such Securities shall bear interest, if
any, or the method or methods, if any, by which such rate or rates are to
be determined, the date or dates, if any, from which such interest shall
accrue or the method or methods, if any, by which such date or dates are to
be determined, the Interest Payment Dates, if any, on which such interest
shall be payable and the Regular Record Date, if any, for the interest
payable on Registered Securities on any Interest Payment Date, whether and
under what circumstances Additional Amounts on such Securities or any of
them shall be payable, the notice, if any, to Holders regarding the
determination of interest on a floating rate Security and the manner of
giving such notice, and the basis upon which interest shall be calculated
if other than that of a 360-day year of twelve 30-day months;
(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;
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(12) the denominations in which any of such Securities that are
Registered Securities shall be issuable if other than denominations of
$1,000 and any integral multiple thereof, and the denominations in which
any of such Securities that are Bearer Securities shall be issuable if
other than the denomination of $5,000;
(13) whether the Securities of the series will be convertible into or
exchangeable for other securities, and if so, the terms and conditions upon
which such Securities will be so convertible or exchangeable, and any
deletions from or modifications or additions to this Indenture to permit or
to facilitate the issuance of such convertible or exchangeable Securities
or the administration thereof;
(14) if other than the principal amount thereof, the portion of the
principal amount of any of such Securities that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion is to be determined;
(15) if other than Dollars, the Foreign Currency in which payment of
the principal of, any premium or interest on or any Additional Amounts with
respect to any of such Securities shall be payable;
(16) if the principal of, any premium or interest on or any Additional
Amounts with respect to any of such Securities are to be payable, at the
election of the Issuer or 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;
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(19) if either or both of Section 402(2) relating to defeasance or
Section 402(3) relating to covenant defeasance shall not be applicable to
the Securities of such series, or any covenants in addition to those
specified in Section 402(3) relating to the Securities of such series which
shall be subject to covenant of defeasance, and any deletions from, or
modifications or additions to, the provisions of Article Four in respect of
the Securities of such series;
(20) if any of such Securities are to be issuable upon the exercise of
warrants, and the time, manner and place for such Securities to be
authenticated and delivered;
(21) if any of such Securities are to be issuable in global form and
are to be issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security) only upon receipt of certain certificates
or other documents or satisfaction of other conditions, then the form and
terms of such certificates, documents or conditions;
(22) if there is more than one Trustee, the identity of the Trustee
and, if not the Trustee, the identity of each Security Registrar, Paying
Agent or Authenticating Agent with respect to such Securities;
(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
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Trustee at or prior to the delivery of the Officers' Certificate setting forth
the terms of such series.
Section 302. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise
provided in or pursuant to this Indenture, Registered Securities denominated in
Dollars shall be issuable in registered form without Coupons in denominations
of $1,000 and any integral multiple thereof, and the Bearer Securities
denominated in Dollars shall be issuable in the denomination of $5,000.
Securities not denominated in Dollars shall be issuable in such denominations
as are established with respect to such Securities in or pursuant to this
Indenture.
Section 303. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Issuer by its Chairman
of the Board, one of its Vice Chairmen, its President, its Treasurer or one of
its Vice Presidents under its corporate seal reproduced thereon and attested by
its Secretary or one of its Assistant Secretaries. Coupons shall be executed on
behalf of the Issuer by the Treasurer or any Assistant Treasurer of the Issuer.
The signature of any of these officers on the Securities or any Coupons
appertaining thereto may be manual or facsimile.
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;
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(b) all conditions precedent to the authentication and delivery of
such Securities and Coupons, if any, appertaining thereto, have been
complied with and that such Securities, and Coupons, when completed by
appropriate insertions, executed under the Issuer's corporate seal and
attested by duly authorized officers of the Issuer, delivered by duly
authorized officers of the Issuer to the Trustee for authentication
pursuant to this Indenture, and authenticated and delivered by the Trustee
and issued by the Issuer in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legally valid and
binding obligations of the Issuer, enforceable against the Issuer in
accordance with their terms, except as enforcement thereof may be subject
to or limited by bankruptcy, insolvency, reorganization, moratorium,
arrangement, fraudulent conveyance, fraudulent transfer or other similar
laws relating to or affecting creditors' rights generally, and subject to
general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law) and will entitle the Holders thereof
to the benefits of this Indenture; such Opinion of Counsel need express no
opinion as to the availability of equitable remedies'
(c) all laws and requirements in respect of the execution and delivery
by the Issuer of such Securities and Coupons, if anye 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.
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No Security or Coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for in Section 202 or 611 executed by or on behalf of the
Trustee or by the Authenticating Agent by the manual signature of one of its
authorized officers. Such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 306 or 307, the Trustee
shall not authenticate and deliver any Bearer Security unless all Coupons
appertaining thereto then matured have been detached and cancelled.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Issuer may
execute and deliver to the Trustee and, upon Issuer Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Issuer executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
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.
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Section 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Issuer shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for each
series of Securities. The Issuer shall have the right to remove and replace
from time to time the Security Registrar for any series of Securities; provided
that no such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of Securities shall have been
appointed by the Issuer and shall have accepted such appointment by the Issuer.
In the event that the Trustee shall not be or shall cease to be Security
Registrar with respect to a series of Securities, it shall have the right to
examine the Security Register for such series at all reasonable times. There
shall be only one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security
of any series at any Office or Agency for such series, the Issuer shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series denominated as authorized in or pursuant to this Indenture, of
a like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
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
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Holder of such Bearer Security shall surrender to any Paying Agent any such
missing Coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 1002, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor after the close of business
at such Office or Agency on (i) any Regular Record Date and before the opening
of business at such Office or Agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such Office
or Agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be (or, if such
Coupon is so surrendered with such Bearer Security, such Coupon shall be
returned to the Person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, shall not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
the Registered Security issued in exchange for such Bearer Security, but shall
be payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to
Securities of any series, at the option of the Holder, Registered Securities of
such series may be exchanged for Bearer Securities upon such terms and
conditions as may be provided in or pursuant to this Indenture with respect to
such series.
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
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earliest date on which such interests may be so exchanged, such global Security
shall be surrendered from time to time by the U.S. Depository or such other
Depository as shall be specified in the Issuer Order with respect thereto, and
in accordance with written instructions given to the Trustee and the U.S.
Depository or such other Depository, as the case may be (which instructions
shall be in writing but need not be contained in or accompanied by an Officers'
Certificate or be accompanied by an Opinion of Counsel), as shall be specified
in the Issuer Order with respect thereto to the Trustee, as the Issuer's agent
for such purpose, to be exchanged, in whole or in part, for definitive
Securities as described above without charge. The Trustee shall authenticate
and make available for delivery, in exchange for each portion of such
surrendered global Security, a like aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such global Security to be exchanged, which (unless such
Securities are not issuable both as Bearer Securities and as Registered
Securities, in which case the definitive Securities exchanged for the global
Security shall be issuable only in the form in which the Securities are
issuable, as provided in or pursuant to this Indenture) shall be in the form of
Bearer Securities or Registered Securities, or any combination thereof, as
shall be specified by the beneficial owner thereof, but subject to the
satisfaction of any certification or other requirements to the issuance of
Bearer Securities; provided, however, that no such exchanges may occur during a
period beginning at the opening of business 15 days before any selection of
Securities of the same series to be redeemed and ending on the relevant
Redemption Date; and provided, further, that (unless otherwise provided in or
pursuant to this Indenture) no Bearer Security delivered in exchange for a
portion of a global Security shall be mailed or otherwise delivered to any
location in the United States. Promptly following any such exchange in part,
such global Security shall be returned by the Trustee to such Depository or the
U.S. Depository, as the case may be, or such other Depository or U.S.
Depository referred to above in accordance with the instructions of the Issuer
referred to above. If a Registered Security is issued in exchange for any
portion of 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
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Security) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Security Registrar for such
Security duly executed by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge and any other
expenses (including fees and expenses of the Trustee) that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 905 or 1107 not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the
Issuer shall not be required (i) to issue, register the transfer of or exchange
any Securities during a period beginning at the opening of business 15 days
before the day of the selection for redemption of Securities of like tenor and
the same series under Section 1103 and ending at the close of business on the
day of such selection, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except in
the case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except, to the extent provided with respect to such Bearer Security, that such
Bearer Security may be exchanged for a Registered Security of like tenor and
the same series, provided that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent with
the provisions of this Indenture or (iv) to issue, register the transfer of or
exchange any Security which, in accordance with its terms, has been surrendered
for repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
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
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Coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in case
any mutilated, destroyed, lost or stolen Security or Coupon has become or is
about to become due and payable, the Issuer in its discretion may, instead of
issuing a new Security, pay such Security or Coupon; provided, however, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an Office or Agency for such Securities
located outside the United States and, unless otherwise provided in or pursuant
to this Indenture, any interest on Bearer Securities and any Additional Amounts
with respect to such interest shall be payable only upon presentation and
surrender of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Issuer
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security, with any Coupons appertaining thereto issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen Coupon
appertains shall constitute a separate obligation of the Issuer, whether or not
the destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series and any
Coupons, if any, duly issued hereunder.
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
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be payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Issuer, at its election in each
case, as provided in Clause (1) or (2) below:
(1) the Issuer may elect to make payment of any Defaulted Interest to
the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Issuer shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on such
Registered Security and the date of the proposed payment, and at the same
time the Issuer shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit on or prior to the date of the proposed payment, such money when so
deposited to be held in trust for the benefit of the Person entitled to
such Defaulted Interest as in this Clause provided. Thereupon, the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed 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
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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 other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Security may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Issuer to the
Trustee of the proposed payment pursuant to this Clause, such payment shall
be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Issuer, interest on Registered Securities that
bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
transfer to a U.S. Dollar account maintained by the payee with a bank located
in the United States in accordance with the provisions of such bank.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
In the case of any Registered Security of any series that is
convertible, which Registered Security is converted after any Regular Record
Date and on or prior to the next 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.
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The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall be overdue, and
neither the Issuer, nor the Trustee or any agent of the Issuer or the Trustee
shall be affected by notice to the contrary.
No Holder of any beneficial interest in any global Security held on
its behalf by a Depository shall have any rights under this Indenture with
respect to such global Security, and such Depository may be treated by the
Issuer, the Trustee, and any agent of the Issuer or the Trustee as the owner of
such global Security for all purposes whatsoever. None of the Issuer, the
Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
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
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Coupons appertaining thereto, and the Trustee, on receipt of an Issuer Order,
at the expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series, when
(1) either
(a) all Securities of such series theretofore authenticated and
delivered and all Coupons appertaining thereto (other than (i) Coupons
appertaining to Bearer Securities of such series surrendered in
exchange for Registered Securities of such series and maturing after
such exchange whose surrender is not required or has been waived as
provided in Section 305, (ii) Securities and Coupons of such series
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 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) 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
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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 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
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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 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
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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
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 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
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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.
(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)
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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 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:
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(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 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
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(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 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
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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,
(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,
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and, in addition thereto, such further amount of money as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and all other amounts due to the Trustee under Section 606.
If the Issuer fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the money so due and unpaid, and
may prosecute such proceeding to judgment or final decree, and may enforce the
same against the Issuer or any other obligor upon such Securities and any
Coupons appertaining thereto and collect the monies adjudged or decreed to be
payable in the manner provided by law out of the property of the Issuer or any
other obligor upon such Securities and any Coupons appertaining thereto,
wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any Coupons appertaining thereto by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or such Securities or in aid of the exercise of any power
granted herein or therein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Issuer or any other obligor upon the
Securities or the property of the Issuer or such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Issuer for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(1) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of the
principal and any premium, interest and Additional Amounts owing and unpaid
in respect of the Securities and any Coupons appertaining thereto and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel) and of the Holders of Securities or any
Coupons allowed in such judicial proceeding; and
(2) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security or any Coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or Coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or any Coupon in any such proceeding.
Section 505. Trustee May Enforce Claims without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of a
Security or Coupon in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, or any
premium, interest or Additional Amounts, upon presentation of the Securities or
Coupons, or both, as the case may be, and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: 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;
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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;
(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
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institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Issuer, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to each and every Holder of a Security or a Coupon
is intended to be exclusive of any other right or remedy, and every right and
remedy, to the extent permitted by law, shall be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not, to the extent permitted by law,
prevent the concurrent assertion or employment of any other appropriate right
or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
or Coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to any Holder of a Security or 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,
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(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of the
other Holders of Securities of such series not joining in such action.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of, any premium or interest on, or
any Additional Amounts with respect to, any Security of such series or any
Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
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
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in such suit having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 515
shall not apply to any suit instituted by the Trustee, to any suit instituted
by any Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of Outstanding Securities of any series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest, if any, on or Additional Amounts, if any,
with respect to any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date, and, in the case of repayment, on or after the date for
repayment) or for the enforcement of the right, if any, to convert or exchange
any Security into Common Stock or other securities in accordance with its
terms.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon or other 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
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the Holders of Securities of any series or any Coupons appertaining thereto
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity satisfactory to it against the
costs, expenses (including legal fees and expenses) and liabilities which
might be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine,
during business hours and upon reasonable notice, the books, records and
premises of the Issuer, personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
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
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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 Registrar
or any other Person that may be an agent of the Trustee or the Issuer, in its
individual or any other capacity, may become the owner or pledgee of Securities
or Coupons and, subject to Sections 310(b) and 311 of the Trust Indenture Act,
may otherwise deal with the Issuer with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other Person.
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.
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As security for the performance of the obligations of the Issuer under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, and premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
Any compensation or expense incurred by the Trustee after a default
specified by Section 501 is intended to constitute an expense of administration
under any then applicable bankruptcy or insolvency law. "Trustee" for purposes
of this Section 606 shall include any predecessor Trustee but the negligence or
bad faith of any Trustee shall not affect the rights of any other Trustee under
this Section 606.
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
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(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,
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
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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, 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
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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 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
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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 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.
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BANK ONE TRUST COMPANY, N.A.,
As Trustee
By
-----------------------------
As Authenticating Agent
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.
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Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Issuer and the Trustee that neither the Issuer, the
Trustee, any Paying Agent or any Security Registrar shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders of Securities in accordance with Section 312(c) of the
Trust Indenture Act, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Section 312(b) of the
Trust Indenture Act.
Section 703. Reports by Trustee.
(1) Within 60 days after September 15 of each year commencing with
the first September 15 following the first issuance of Securities pursuant to
Section 301, if required by Section 313(a) of the Trust Indenture Act, the
Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture Act,
a brief report dated as of such September 15 with respect to any of the events
specified in said Section 313(a) which may have occurred since the later of the
immediately preceding September 15 and the date of this Indenture.
(2) The Trustee shall transmit the reports required by Section 313(a)
of the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d) of the Trust
Indenture Act.
Section 704. Reports by Issuer
The Issuer, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; or, if the Issuer is not required to file information, documents
or reports pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, 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
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(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed from time to
time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Issuer May Consolidate, Etc., Only on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Issuer with or into any other Person
or Persons (whether or not affiliated with the Issuer), or successive
consolidations or mergers in which the Issuer or its successor or successors
shall be a party or parties, or shall prevent any conveyance, transfer or lease
of the property of the Issuer as an entirety or substantially as an entirety,
to any other Person (whether or not affiliated with the Issuer); provided,
however, that:
(1) in case the Issuer shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to any Person, the entity formed by such
consolidation or into which the Issuer is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Issuer as an entirety or substantially as an entirety shall be a Corporation
organized and existing under the laws of the United States of America, any
state thereof or the District of Columbia and shall expressly assume, by an
indenture (or indentures, if at such time there is more than one Trustee)
supplemental hereto, executed by the successor Person and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of, any premium and interest on and any Additional Amounts with
respect to all the Securities and the performance of every obligation in this
Indenture and the Outstanding Securities on the part of the Issuer to be
performed or observed and shall provide for conversion or exchange rights in
accordance with the provisions of the Securities of any series that are
convertible or exchangeable into other securities;
(2) immediately after giving effect to such transaction, no Event of
Default or event which, after notice or lapse of time, or both, would become an
Event of Default, shall have occurred and be continuing; and
(3) either the Issuer or the successor Person shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
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Section 802. Successor Person Substituted for Issuer.
Upon any consolidation by the Issuer with or merger of the Issuer into
any other Person or any conveyance, transfer or lease of the properties and
assets of the Issuer substantially as an entirety to any Person in accordance
with Section 801, the successor Person formed by such consolidation or into
which the Issuer is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Issuer under this Indenture with the same effect as if such
successor Person had been named as the Issuer herein; and thereafter, except in
the case of a lease, the predecessor Person shall be released from all
obligations and covenants under this Indenture, the Securities and the Coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the
Issuer (when authorized by or pursuant to a Board Resolution) and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the Issuer, and
the assumption by any such successor of the covenants of the Issuer contained
herein and in the Securities; or
(2) to add to the covenants of the Issuer for the benefit of the
Holders of all or any series of Securities (as shall be specified in such
supplemental indenture or indentures) or to surrender any right or power herein
conferred upon the Issuer; or
(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of, any premium or
interest on or any Additional Amounts with respect to Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities, to permit
Bearer Securities to be exchanged for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided any such action 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
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administration of the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 609; or
(6) to cure any ambiguity or to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture which shall not adversely affect the interests of the
Holders of Securities of any series then Outstanding or any Coupons
appertaining thereto in any material respect; or
(7) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(8) to add any additional Events of Default with respect to all or
any series of Securities (as shall be specified in such supplemental
indenture); or
(9) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Four, provided that
any such action shall not adversely affect the interests of any Holder of a
Security of such series and any Coupons appertaining thereto or any other
Security or Coupon in any material respect; or
(10) to make provisions with respect to conversion or exchange rights
of Holders of Securities of any series; or
(11) to amend or supplement any provision contained herein or in any
supplemental indenture, provided that no such amendment or supplement shall
materially adversely affect the interests of the Holders of any Securities then
Outstanding.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than 66-2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Issuer and the
Trustee, and the Trustee may enter into an indenture or 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
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Section 1004 (except as contemplated by Section 801(1) and permitted by Section
901(1)), or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, change the redemption provisions or
adversely affect the right of repayment at the option of any Holder as
contemplated by Article Thirteen, or change the Place of Payment, Currency in
which the principal of, any premium or interest on, or any Additional Amounts
with respect to any Security is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date or, in the case
of repayment at the option of the Holder, on or after the date for repayment or
in the case of change in control, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1006, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby, or
(4) 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
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execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of a Security theretofore or thereafter authenticated and delivered
hereunder and of any Coupon appertaining thereto shall be bound thereby.
Section 905. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Issuer shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 906. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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
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terms thereof, any Coupons appertaining thereto and this Indenture. Any
interest due on any Bearer Security on or before the Maturity thereof, and any
Additional Amounts payable with respect to such interest, shall be payable only
upon presentation and surrender of the Coupons appertaining thereto for such
interest as they severally mature.
Section 1002. Maintenance of Office or Agency.
The Issuer shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Issuer in respect of the Securities of such series
relating thereto and this Indenture may be served. If Securities of a series
are issuable as Bearer Securities, the Issuer shall maintain, subject to any
laws or regulations applicable thereto, an Office or Agency in a Place of
Payment for such series which is located outside the United States where
Securities of such series and any Coupons appertaining thereto may be presented
and surrendered for payment; provided, however, that if the Securities of such
series are listed on The Stock Exchange of the United Kingdom and the Republic
of Ireland or the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require, the Issuer
shall maintain a Paying Agent in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the
Securities of such series are listed on such exchange. The Issuer will give
prompt written notice to the Trustee of the location, and any change in the
location, of such Office or Agency. If at any time the Issuer shall fail to
maintain any such required Office or Agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of such series and any Coupons appertaining
thereto may be presented and surrendered for payment at the place specified for
the purpose with respect to such Securities as provided in or pursuant to this
Indenture, and the Issuer hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
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
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accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Issuer may also from time to time designate one or more other
Offices or Agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Issuer of its obligation to maintain an Office
or Agency in each Place of Payment for Securities of any series for such
purposes. The Issuer shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other Office or Agency. Unless otherwise provided in or pursuant to this
Indenture, the Issuer hereby designates as the Place of Payment for each series
of Securities the Borough of Manhattan, The City of New York, and initially
appoints the Corporate Trust Office of the Trustee as the Office or Agency of
the Issuer in the Borough of Manhattan, The City of New York for such purpose.
The Issuer may subsequently appoint a different Office or Agency in the Borough
of Manhattan, The City of New York for the Securities of any series.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of this Indenture, then the Issuer
will maintain with respect to each such series of Securities, or as so
required, at least one exchange rate agent.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Issuer shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date of
the principal of, any premium or interest on or Additional Amounts with respect
to any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series) sufficient to pay the
principal or any premium, interest or Additional Amounts so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and shall promptly notify the Trustee of its action or failure so to
act.
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.
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The Issuer shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of, any
premium or interest on or any Additional Amounts with respect to Securities of
such series in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as provided in or
pursuant to this Indenture;
(2) give the Trustee notice of any default by the Issuer (or any
other obligor upon the Securities of such series) in the making of any payment
of principal, any premium or interest on or any Additional Amounts with respect
to the Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuer or such Paying Agent, such sums to be held by the Trustee
upon the same terms as those upon which such sums were held by the Issuer or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Except as otherwise provided herein or pursuant hereto, any money
deposited with the Trustee or any Paying Agent, or then held by the Issuer, in
trust for the payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any Security of any series or any Coupon
appertaining thereto and remaining unclaimed for two years after such principal
or any such premium or interest or any such Additional Amounts shall have
become due and payable shall be paid to the Issuer on Issuer Request, or (if
then held by the Issuer) shall be discharged from such trust; and the Holder of
such Security or any Coupon appertaining thereto shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Issuer as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the 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.
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Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Issuer agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts (if applicable) in any provision hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to such series of Securities (or if the Securities of
such series shall not bear interest prior to Maturity, the first day on which a
payment of principal is made), and at least 10 days prior to each date of
payment of principal or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officers' Certificate, the Issuer
shall furnish to the Trustee and the principal Paying Agent or Paying Agents,
if other than the Trustee, an Officers' Certificate instructing the Trustee and
such Paying Agent or Paying Agents whether such payment of principal of and
premium, if any, or interest on the Securities of such series shall be made to
Holders of Securities of such series or the Coupons appertaining thereto who
are United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of such
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities or Coupons, and the
Issuer agrees to pay to the Trustee or such Paying Agent the Additional Amounts
required by the terms of such Securities. The Issuer covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
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.
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Section 1006. Waiver of Certain Covenants.
The Issuer may omit in any particular instance to comply with any
term, provision or condition set forth in Section 1005 with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities of such
series, by Act of such Holders, either shall waive such compliance in such
instance or generally shall have waived compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Issuer and the duties of the
Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
Section 1007. Issuer Statement as to Compliance; Notice of Certain
Defaults.
(1) The Issuer shall deliver to the Trustee, within 120 days after
the end of each fiscal year, a written statement (which need not be contained
in or accompanied by an Officers' Certificate) signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Issuer, stating that
(a) a review of the activities of the Issuer during such year
and of its performance unIndenture 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.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Redemption of Securities of any series at the option of the Issuer as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Issuer to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Issuer of (a) less than all of the Securities of any series or (b) all
of the Securities of any series, with the same issue date, interest rate or
formula, Stated Maturity and other terms, the Issuer shall, at least 60 days
prior to the Redemption Date fixed by the Issuer (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed.
Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series with the same issue
date, interest rate or formula, Stated Maturity and other terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of Registered
Securities of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a Security
of such series established herein or pursuant hereto.
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
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as may be) to be the portion selected for redemption. Securities which have
been converted or exchanged during a selection of Securities to be redeemed
shall be treated by the Trustee as Outstanding for the purpose of such
selection.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified in the Securities to be redeemed, to the
Holders of Securities to be redeemed. Failure to give notice by mailing in the
manner herein provided to the Holder of any Registered Securities designated
for redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such 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,
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(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for redemption
or the amount of any such missing Coupon or Coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Issuer, the
Trustee and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on the Redemption Date pursuant to Section 305 or otherwise, the last date, as
determined by the Issuer, on which such exchanges may be made,
(10) in the case of Securities of any series that are convertible or
exchangeable into other securities, the conversion or exchange price or rate,
the date or dates on which the right to convert or exchange the principal of the
Securities of such series to be redeemed will commence or terminate and the
place or places where such Securities may be surrendered for conversion or
exchange, and
(11) the CUSIP number or the Euroclear or the Cedel reference numbers
of such Securities, if any (or any other numbers used by a Depository to
identify such Securities).
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed, unless the
redemption applies to less than all of the Registered Securities.
Notice of redemption of Securities to be redeemed at the election of
the Issuer shall be given by the Issuer or, at the Issuer's request, by the
Trustee in the name and at the expense of the Issuer.
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
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the Redemption Price and accrued interest) such Securities shall cease to bear
interest and the Coupons for such interest appertaining to any Bearer
Securities so to be redeemed, except to the extent provided below, shall be
void. Upon surrender of any such Security for redemption in accordance with
said notice, together with all Coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Issuer at the
Redemption Price, together with any accrued interest and Additional Amounts to
the Redemption Date; provided, however, that, except as otherwise provided in
or pursuant to this Indenture or the Bearer Securities of such series,
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only upon presentation and
surrender of Coupons for such interest (at an Office or Agency located outside
the United States except as otherwise provided in Section 1002), and provided,
further, that, except as otherwise specified in or pursuant to this Indenture
or the Registered Securities of such series, installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
Regular Record Dates therefor according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Issuer and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
Coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that any interest or Additional Amounts represented by
Coupons shall be payable only upon presentation and surrender of those Coupons
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
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of the Security so surrendered. If a Security in global form is so surrendered,
the Issuer shall execute, and the Trustee shall authenticate and deliver to the
U.S. Depository or other Depository for such Security in global form as shall
be specified in the Issuer Order with respect thereto to the Trustee, without
service charge, a new Security in global form in a denomination equal to and in
exchange for the unredeemed portion of the principal of the Security in global
form so surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of 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
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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 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.
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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
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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
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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.
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(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
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<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
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<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.
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<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
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<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
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<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.
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<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.
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<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 /s/ William E. Seas
----------------------------------
Name: William E. Seas
Title: Treasurer
[SEAL] BANK ONE TRUST COMPANY, N.A.,
as Trustee
Attest:
By /s/ Mary R. Fonti.
----------------------------------
Name: Mary R. Fonti
Title: Account Executive
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<PAGE> 93
DISTRICT OF COLUMBIA)
:SS.:
COUNTY OF ___________________)
On the _____ day of January, 2000, 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 4.2
[FACE OF NOTE]
THIS NOTE IS NOT GUARANTEED BY THE UNITED STATES AND DOES NOT CONSTITUTE A DEBT
OR OBLIGATION OF THE UNITED STATES OR ANY AGENCY OR INSTRUMENTALITY THEREOF.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
<TABLE>
<CAPTION>
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. FXR-__
----------------------------- -----------------
NATIONAL CONSUMER COOPERATIVE BANK
MEDIUM-TERM SENIOR NOTE, SERIES B
(FIXED RATE)
<S> <C> <C>
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY
DATE:
INTEREST PAYMENT DATE(S) [ ] CHECK IF ORIGINAL ISSUE INITIAL REDEMPTION
[ ] May 1 and November 1 DISCOUNT NOTE DATE:
[ ] Other: Issue Price: %
INITIAL REDEMPTION ANNUAL REDEMPTION OPTIONAL REPAYMENT
PERCENTAGE: % PERCENTAGE REDUCTION: DATE(S):
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION EXCHANGE RATE
[ ] United States dollars (if other than $1,000 and integral AGENT:
[ ] Other: multiples thereof):
REGULAR RECORD DATE(S) ADDENDUM ATTACHED OTHER/ADDITIONAL PROVISIONS:
(If other than April 15 and October 15): [ ]YES [ ] Yes
[ ]NO [ ] No
</TABLE>
<PAGE> 2
National Consumer Cooperative Bank, a corporation duly organized and
existing under the laws of the United States (the "Issuer", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to CEDE & Co., or registered assigns, the
Principal Amount of , on the Stated Maturity Date specified above (or any
Redemption Date or Repayment Date, each as defined on the reverse hereof, or any
earlier date of acceleration of maturity) (each such date being hereinafter
referred to as the "Maturity Date" with respect to the principal repayable on
such date) and to pay interest thereon (and on any overdue principal, premium
and/or interest to the extent legally enforceable) at the Interest Rate per
annum specified above, until the principal hereof is paid or duly made available
for payment. The Issuer will pay interest in arrears on each Interest Payment
Date, if any, specified above (each, an "Interest Payment Date"), commencing
with the first Interest Payment Date next succeeding the Original Issue Date
specified above, and on the Maturity Date; provided, however, that if the
Original Issue Date occurs between a Regular Record Date (as defined below) and
the next succeeding Interest Payment Date, interest payments will commence on
the second Interest Payment Date next succeeding the Original Issue Date to the
registered holder (the "Holder") of this Note on the Regular Record Date with
respect to such second Interest Payment Date. Interest on this Note will be
computed on the basis of a 360-day year of twelve 30-day months.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes, as defined
on the reverse hereof) is registered at the close of business on the April 15
and October 15 (whether or not a Business Day, as defined below), as the case
may be, immediately preceding such Interest Payment Date (unless otherwise
specified on the face hereof) (the "Regular Record Date"); provided, however,
that interest payable on the Maturity Date will be payable to the person to whom
the principal hereof and premium, if any, hereon shall be payable. Any such
interest not so punctually paid or duly provided for on any Interest Payment
Date other than the Maturity Date ("Defaulted Interest") shall forthwith cease
to be payable to the Holder on the close of business on any Regular Record Date
and, instead, shall be paid to the person in whose name this Note is registered
at the close of business on a Special Record Date (the "Special Record Date")
for the payment of such Defaulted Interest to be fixed by the Trustee
hereinafter referred to, notice whereof shall be given to the Holder of this
Note by the Trustee not less than 10 calendar days prior to such Special Record
Date or may be paid at any time in any other lawful manner, all as more fully
provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this Note
due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, upon delivery of a duly completed election form as
contemplated on the reverse hereof) at the office or agency maintained by the
Issuer for that purpose in the Borough of Manhattan, The City of New York,
currently the office of Bank One Trust Company, N.A. (the "Trustee") located at
14 Wall St., 8th
2
<PAGE> 3
Floor, New York, New York 10005, or at such other paying agency in the Borough
of Manhattan, The City of New York, as the Issuer may determine; provided,
however, that if the Specified Currency specified above is other than United
States dollars and such payment is to be made in the Specified Currency in
accordance with the provisions set forth below, such payment will be made by
wire transfer of immediately available funds to an account with a bank
designated by the Holder hereof at least 15 calendar days prior to the Maturity
Date, provided that such bank has appropriate facilities therefor and that this
Note (and, if applicable, a duly completed repayment election form) is presented
and surrendered at the aforementioned office or agency maintained by the Issuer
in time for the Trustee to make such payment in such funds in accordance with
its normal procedures. Payment of interest due on any Interest Payment Date
other than the Maturity Date will be made at the aforementioned office or agency
maintained by the Issuer or, at the option of the Issuer, by check mailed to the
address of the person entitled thereto as such address shall appear in the
Security Register maintained by the Trustee; provided, however, that a Holder of
U.S.$10,000,000 (or, if the Specified Currency is other than United States
dollars, the equivalent thereof in the Specified Currency) or more in aggregate
principal amount of Notes (whether having identical or different terms and
provisions) will be entitled to receive interest payments on such Interest
Payment Date by wire transfer of immediately available funds if appropriate wire
transfer instructions have been received in writing by the Trustee not less than
15 calendar days prior to such Interest Payment Date. Any such wire transfer
instructions received by the Trustee shall remain in effect until revoked by
such Holder.
If any Interest Payment Date or the Maturity Date falls on a day that is
not a Business Day, the required payment of principal, premium, if any, and/or
interest shall be made on the next succeeding Business Day with the same force
and effect as if made on the date such payment was due, and no interest shall
accrue with respect to such payment for the period from and after such Interest
Payment Date or the Maturity Date, as the case may be, to the date of such
payment on the next succeeding Business Day.
As used herein, "Business Day" means any day other than a Saturday, Sunday
or other day on which banking institutions in The City of New York are
authorized or obligated by law, regulation or executive order to close;
provided, however, that if the Specified Currency is other than United States
dollars, such day is also a Business Day in the Principal Financial Center (as
defined below) of the country issuing the Specified Currency (or, if the
Specified Currency is Euro, such day is also a day on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open).
"Principal Financial Center" means the capital city of the country issuing the
Specified Currency except that with respect to United States dollars, Australian
dollars, Deutsche marks, Dutch guilders, Italian lire and Swiss francs, the
"Principal Financial Center" shall be The City of New York, Melbourne,
Frankfurt, Amsterdam, Milan, London and Zurich, respectively.
The Issuer is obligated to make payment of principal, premium, if any, and
interest in respect of this Note in the Specified Currency or, (i) if such
Specified Currency (other than Euro) is not at the time of such payment legal
tender for the payment of public and private debts in the relevant country, in
such other coin or currency of such country which as at the time of such payment
is legal tender for the payment of such debts or (ii) if such Specified Currency
is Euro, in such other coin or currency which at the time of payment is then
legal tender in the member
3
<PAGE> 4
states of the European Union that have adopted the single currency in
accordance with the Treaty establishing the European Community, as amended by
the Treaty on European Union. If the Specified Currency is other than United
States dollars, except as otherwise provided below, any such amounts so payable
by the Issuer will be converted by the Exchange Rate Agent specified above into
United States dollars for payment to the Holder of this Note.
If the Specified Currency is other than United States dollars, the Holder
of this Note may elect to receive any amounts payable hereunder in such
Specified Currency. If the Holder of this Note shall not have duly made an
election to receive all or a specified portion of any payment of principal,
premium, if any, and/or interest in respect of this Note in the Specified
Currency, any United States dollar amount to be received by the Holder of this
Note will be based on the highest bid quotation in The City of New York received
by the Exchange Rate Agent at approximately 11:00 A.M., New York City time, on
the second Business Day preceding the applicable payment date from three
recognized foreign exchange dealers (one of whom may be the Exchange Rate Agent
or an Agent) selected by the Exchange Rate Agent and approved by the Issuer for
the purchase by the quoting dealer of the Specified Currency for United States
dollars for settlement on such payment date in the aggregate amount of the
Specified Currency payable to all Holders of Notes scheduled to receive United
States dollar payments and at which the applicable dealer commits to execute a
contract. If three such bid quotations are not available, payments on this Note
will be made in the Specified Currency. All currency exchange costs will be
borne by the Holder of this Note by deductions from such payments.
If the Specified Currency is other than United States dollars, the Holder
of this Note may elect to receive all or a specified portion of any payment of
principal, premium, if any, and/or interest in respect of this Note in the
Specified Currency by submitting a written request for such payment to the
Trustee at its corporate trust office on or prior to the applicable Regular
Record Date or at least 15 calendar days prior to the Maturity Date, as the case
may be. Such written request may be mailed or hand delivered or sent by cable,
telex or other form of facsimile transmission. The Holder of this Note may elect
to receive all or a specified portion of all future payments in the Specified
Currency in respect of such principal, premium, if any, and/or interest and need
not file a separate election for each payment. Such election will remain in
effect until revoked by written notice to the Trustee, but written notice of any
such revocation must be received by the Trustee on or prior to the applicable
Regular Record Date or at least 15 calendar days prior to the Maturity Date, as
the case may be.
If the Specified Currency is other than United States dollars and the
Holder of this Note shall have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency, but the Specified Currency is
not available due to the imposition of exchange controls or other circumstances
beyond the control of the Issuer, the Issuer will be entitled to satisfy its
obligations to the Holder of this Note by making such payment in United States
dollars on the basis of the Market Exchange Rate (as defined below) determined
by the Exchange Rate Agent on the second Business Day prior to such payment date
or, if such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate or as otherwise specified in the Pricing
Supplement applicable to this Note. The "Market Exchange Rate" for the Specified
Currency means the noon dollar buying rate in The City of New York for cable
4
<PAGE> 5
transfers for the Specified Currency as certified for customs purposes (or, if
not so certified, as otherwise determined) by the Federal Reserve Bank of New
York. Any payment made in United States dollars under such circumstances shall
not constitute an Event of Default (as defined in the Indenture).
All determinations referred to above made by the Exchange Rate Agent shall
be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holder of this Note.
The Issuer agrees to indemnify the Holder of this Note against any loss
incurred by such Holder as a result of any judgment or order being given or made
against the Issuer for any amount due hereunder and such judgment or order
requiring payment in a currency (the "Judgment Currency") other than the
Specified Currency, and as a result of any variation between (i) the rate of
exchange at which the Specified Currency amount is converted into the Judgment
Currency for the purpose of such judgment or order, and (ii) the rate of
exchange at which such Holder, on the date of payment of such judgment or order,
is able to purchase the Specified Currency with the amount of the Judgment
Currency actually received by such Holder, as the case may be. The foregoing
indemnity constitutes a separate and independent obligation of the Issuer and
continues in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" includes any premiums and costs of
exchange payable in connection with the purchase of, or conversion into, the
relevant currency.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof and, if so specified on the face hereof, in an Addendum
hereto, which further provisions shall have the same force and effect as if set
forth on the face hereof.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Provisions" apply to this Note as specified above, this Note
shall be subject to the terms set forth in such Addendum or such
"Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
5
<PAGE> 6
IN WITNESS WHEREOF, National Consumer Cooperative Bank has caused this Note
to be duly executed by one of its duly authorized officers.
NATIONAL CONSUMER COOPERATIVE BANK
By
----------------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of
the series designated therein referred
to in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By
----------------------------------
Authorized Signatory
6
<PAGE> 7
NATIONAL CONSUMER COOPERATIVE BANK
MEDIUM-TERM SENIOR NOTE, SERIES B
(FIXED RATE)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Issuer issued and to be issued under an Indenture, dated as
of January 15, 1997, as amended, modified or supplemented from time to time (the
"Indenture"), between the Issuer and Bank One Trust Company, N.A. (as success
trustee to The First National Bank of Chicago), as trustee (the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Issuer, the Trustee and the Holders of the Securities, and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Note is one of the series of Securities designated as "Medium-Term Senior Notes,
Series B" (the "Notes"). All terms used but not defined in this Note or in an
Addendum hereto shall have the meanings assigned to such terms in the Indenture
or on the face hereof, as the case may be.
This Note is issuable only in registered form without coupons in minimum
denominations of U.S. $1,000 and integral multiples thereof or other Authorized
Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Maturity Date.
This Note will be subject to redemption at the option of the Issuer on any
date on or after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S. $1,000 or
other integral multiple of an Authorized Denomination (provided that any
remaining principal amount hereof shall be at least U.S. $1,000 or such other
minimum Authorized Denomination), at the Redemption Price (as defined below),
together with unpaid interest accrued thereon to the date fixed for redemption
(the "Redemption Date"), on written notice given to the Holder hereof (in
accordance with the provisions of the Indenture) not more than 60 nor less than
30 calendar days prior to the Redemption Date. The "Redemption Price" shall be
the Initial Redemption Percentage specified on the face hereof (as adjusted by
the Annual Redemption Percentage Reduction, if any, specified on the face hereof
as set forth below) multiplied by the unpaid principal amount of this Note to be
redeemed. The Initial Redemption Percentage shall decline at each anniversary of
the Initial Redemption Date by the Annual Redemption Percentage Reduction, if
any, until the Redemption Price is 100% of unpaid principal amount to be
redeemed. In the event of redemption of this Note in part only, a new Note of
like tenor for the unredeemed portion hereof and otherwise having the same terms
and provisions as this Note shall be issued by the Issuer in the name of the
Holder hereof upon the presentation and surrender hereof.
7
<PAGE> 8
This Note will be subject to repayment at the option of the Holder prior to
its Stated Maturity Date on any Optional Repayment Date(s), if any, indicated
above. If no Optional Repayment Dates are set forth above, this Note may not be
so repaid at the option of the Holder hereof prior to the Stated Maturity Date.
On any Optional Repayment Date, this Note shall be repayable in whole or in part
in an amount equal to $1,000 or any integral multiple thereof (provided that any
remaining principal amount shall be an Authorized Denomination) at the option of
the Holder hereof at a repayment price equal to 100% of the principal amount to
be repaid, together with interest thereon payable to the date of repayment. For
this Note to be repaid in whole or in part at the option of the Holder hereof,
the Holder must give to the Trustee not less than 30 days' nor more than 60
days' notice. This notice shall consist of either (i) this Note with the form
entitled "Option to Elect Repayment" duly completed, or (ii) a telegram,
facsimile transmission or a letter from a member of a national securities
exchange or of the National Association of Securities Dealers, Inc. or a
commercial bank or trust company in the United States, setting forth the name of
the Holder, the principal amount of this Note, the principal amount of this Note
to be repaid, the certificate number or a description of the tenor and terms of
this Note, a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Note, together with the duly completed form
entitled "Option to Elect Repayment," will be received by the Trustee not later
than the fifth Business Day after the date of telegram, facsimile transmission
or letter; provided, however, that the telegram, facsimile transmission or
letter shall only be effective if this Note and the form, duly completed, are
received by the Trustee by the fifth Business Day. Exercise of such repayment
option by the Holder hereof shall be irrevocable. In the event of repayment of
this Note in part only, a new Note for the unpaid portion hereof shall be issued
in the name of the Holder hereof upon the surrender hereof.
If this Note is specified on the face hereof to be an Original Issue
Discount Note, the amount payable to the Holder of this Note in the event of
redemption, repayment or acceleration of maturity will be equal to the sum of
(1) the Issue Price specified on the face hereof (increased by any accruals of
the Discount, as defined below) and, in the event of any redemption of this Note
(if applicable), multiplied by the Initial Redemption Percentage (as adjusted by
the Annual Redemption Percentage Reduction, if applicable) and (2) any unpaid
interest accrued thereon to the Redemption Date, Repayment Date or date of
acceleration of maturity, as the case may be. The difference between the Issue
Price and 100% of the principal amount of this Note is referred to herein as the
"Discount".
For purposes of determining the amount of Discount that has accrued as of
any Redemption Date, Repayment Date or date of acceleration of maturity of this
Note, such Discount will be accrued so as to cause the yield on the Note to be
constant. The constant yield will be calculated using a 30-day month, 360-day
year convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period) and an assumption that
the maturity of this Note will not be accelerated. If the period from the
Original Issue Date to the initial Interest Payment Date (the "Initial Period")
is shorter than the compounding period for this Note, a proportionate amount of
the yield for an entire compounding period will be accrued. If the Initial
Period is longer than the compounding period, then such period will be
8
<PAGE> 9
divided into a regular compounding period and a short period, with the short
period being treated as provided in the preceding sentence.
If an Event of Default shall occur and be continuing, the principal of the
Notes may, and in certain cases shall, be accelerated in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Securities at any time by the Issuer
and the Trustee with the consent of the Holders of not less than 66-2/3% of the
aggregate principal amount of all Securities at the time outstanding and
affected thereby. The Indenture also contains provisions permitting the Holders
of not less than a majority of the aggregate principal amount of the outstanding
Securities of any series, on behalf of the Holders of all such Securities, to
waive compliance by the Issuer with certain provisions of the Indenture.
Furthermore, provisions of the Indenture permit the Holders of not less than a
majority of the aggregate principal amount of the outstanding Securities of any
series, in certain instances, to waive, on behalf of all of the Holders of
Securities of such series, certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and other Notes issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, the transfer of this Note is registrable in the Security
Register of the Issuer upon surrender of this Note for registration of transfer
at the office or agency of the Issuer in any place where the principal hereof
and any premium or interest hereon are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the
Security Registrar duly executed by, the Holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the Holder hereof surrendering the
same.
9
<PAGE> 10
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
10
<PAGE> 11
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
TEN - as tenants in common UNIF GIFT MIN - Custodian
COM ACT -------- ----------
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act
in common ---------------------------
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
----------------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------
- --------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
- --------------------------------------------------------------------------------
this Note and all rights thereunder hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
Attorney to transfer this Note on the books of the Trustee, with full
power of substitution in the premises.
Dated:
----------------------- --------------------------------------------
----------------------- --------------------------------------------
Notice: The signature(s) on this
Assignment must correspond with the
name(s) as written upon the face of this
Note in every particular, without
alteration or enlargement or any change
whatsoever.
11
<PAGE> 12
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Issuer to
repay this Note (or portion hereof specified below) pursuant to its terms at a
price equal to 100% of the principal amount to be repaid, together with unpaid
interest accrued hereon to the Repayment Date, to the undersigned, at
----------
- --------------------------------------------------------------------------------
- -------------------------------------------------------------------------------.
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate trust
office in the Borough of Manhattan, The City of New York, currently located at
______________________________________, not more than 60 nor less than 30
calendar days prior to the Repayment Date, this Note with this "Option to Elect
Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S. $1,000 or other
integral multiple of an Authorized Denomination) (provided that any remaining
principal amount shall be at least U.S. $1,000 or such other minimum Authorized
Denomination) which the Holder elects to have repaid and specify the
denomination or denominations (which shall be U.S. $1,000 or such other minimum
Authorized Denomination) of the Notes to be issued to the Holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal
Amount
to be Repaid: $
-------------- ----------------------------------------
Dated: Notice: The signature(s) on this Option
------------------------ Elect Repayment must correspond with
the name(s) as written upon the face of
this Note in every particular, without
alteration or enlargement or any change
whatsoever.
12
<PAGE> 1
EXHIBIT 4.3
[FACE OF NOTE]
THIS NOTE IS NOT GUARANTEED BY THE UNITED STATES AND DOES NOT CONSTITUTE A DEBT
OR OBLIGATION OF THE UNITED STATES OR ANY AGENCY OR INSTRUMENTALITY THEREOF.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
<TABLE>
<CAPTION>
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. FLR-________ ___________ ________________
NATIONAL CONSUMER COOPERATIVE BANK
MEDIUM-TERM SENIOR NOTE, SERIES B
(FLOATING RATE)
<S> <C> <C>
INTEREST RATE BASIS
OR BASES: ORIGINAL ISSUE DATE: STATED MATURITY DATE:
IF LIBOR: IF CMT RATE:
[ ]LIBOR Reuters Designated CMT Telerate Page:
Page: If Telerate Page 7052:
[ ]LIBOR Telerate
Page: [ ] Weekly Average
Designated LIBOR Currency: [ ] Monthly Average
Designated CMT Maturity Index:
INDEX MATURITY: INITIAL INTEREST RATE: % INTEREST PAYMENT DATE(S):
:
SPREAD (PLUS OR MINUS): INITIAL INTEREST RESET DATE: REGULAR RECORD DATE(S):
</TABLE>
1
<PAGE> 2
<TABLE>
<CAPTION>
SPREAD MULTIPLIER: OPTIONAL REPAYMENT DATE(S): INTEREST RESET DATES:
INITIAL REDEMPTION DATE: INITIAL REDEMPTION PERCENTAGE: ANNUAL REDEMPTION PERCENTAGE REDUCTION:
<S> <C> <C>
CALCULATION AGENT: EXCHANGE RATE AGENT: DAY COUNT CONVENTION:
[ ] 30/360 for the period
from ________ to_________ .
[ ] Actual/360 for the period from
_______ to_________
MAXIMUM INTEREST RATE: MINIMUM INTEREST RATE: [ ] Actual/Actual for the period from
________ to ________.
AUTHORIZED [ ] CHECK IF ORIGINAL ISSUE Applicable Interest Rate Basis
DENOMINATION DISCOUNT NOTE (if interest is calculated with reference
(if other than $1,000 and integral Issue Price: % to two or more Interest Rate Bases):
multiples thereof):
SPECIFIED CURRENCY: ADDENDUM ATTACHED: OTHER/ADDITIONAL PROVISIONS:
[ ] United States Dollars [ ] Yes [ ] Yes
[ ] Other: [ ] No [ ] No
</TABLE>
2
<PAGE> 3
National Consumer Cooperative Bank, a corporation duly organized and
existing under the laws of the United States (the "Issuer", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to CEDE & Co., or registered assigns, the
Principal Amount of , on the Stated Maturity Date specified above (or any
Redemption Date or Repayment Date, each as defined on the reverse hereof, or any
earlier date of acceleration of maturity) (each such date being hereinafter
referred to as the "Maturity Date" with respect to the principal repayable on
such date) and to pay interest thereon (and on any overdue principal, premium
and/or interest to the extent legally enforceable) at a rate per annum equal to
the Initial Interest Rate specified above until the Initial Interest Reset Date
specified above and thereafter at a rate determined in accordance with the
provisions specified above and on the reverse hereof or in an Addendum hereto
with respect to one or more Interest Rate Bases specified above until the
principal hereof is paid or duly made available for payment. The Issuer will pay
interest in arrears on each Interest Payment Date, if any, specified above
(each, an "Interest Payment Date"), commencing with the first Interest Payment
Date next succeeding the Original Issue Date specified above, and on the
Maturity Date; provided, however, that if the Original Issue Date occurs between
a Regular Record Date (as defined below) and the next succeeding Interest
Payment Date, interest payments will commence on the second Interest Payment
Date next succeeding the Original Issue Date to the registered holder (the
"Holder") of this Note on the Regular Record Date with respect to such second
Interest Payment Date.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes, as defined
on the reverse hereof) is registered at the close of business on the fifteenth
calendar day (whether or not a Business Day, as defined below) immediately
preceding such Interest Payment Date (unless otherwise specified on the face
hereof) (the "Regular Record Date"); provided, however, that interest payable on
the Maturity Date will be payable to the person to whom the principal hereof and
premium, if any, hereon shall be payable. Any such interest not so punctually
paid or duly provided for on any Interest Payment Date other than the Maturity
Date ("Defaulted Interest") shall forthwith cease to be payable to the Holder on
the close of business on any Regular Record Date and, instead, shall be paid to
the person in whose name this Note is registered at the close of business on a
special record date (the "Special Record Date") for the payment of such
Defaulted Interest to be fixed by the Trustee hereinafter referred to, notice
whereof shall be given to the Holder of this Note by the Trustee not less than
10 calendar days prior to such Special Record Date or may be paid at any time in
any other lawful manner, all as more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this Note
due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, upon delivery of a duly completed election form as
contemplated on the reverse hereof) at the office or agency maintained by the
Issuer for that purpose in the Borough of
3
<PAGE> 4
Manhattan, The City of New York, currently the office of Bank One Trust Company,
N.A. (the "Trustee"), located at 14 Wall Street, 8th Floor, New York, New York
10005, or at such other paying agency in the Borough of Manhattan, The City of
New York, as the Issuer may determine; provided, however, that if the Specified
Currency specified above is other than United States dollars and such payment is
to be made in the Specified Currency in accordance with the provisions set forth
below, such payment will be made by wire transfer of immediately available funds
to an account with a bank designated by the Holder hereof at least 15 calendar
days prior to the Maturity Date, provided that such bank has appropriate
facilities therefor and that this Note (and, if applicable, a duly completed
repayment election form) is presented and surrendered at the aforementioned
office or agency maintained by the Issuer in time for the Trustee to make such
payment in such funds in accordance with its normal procedures. Payment of
interest due on any Interest Payment Date other than the Maturity Date will be
made at the aforementioned office or agency maintained by the Issuer or, at the
option of the Issuer, by check mailed to the address of the person entitled
thereto as such address shall appear in the Security Register maintained by the
Trustee; provided, however, that a Holder of U.S.$10,000,000 (or, if the
Specified Currency is other than United States dollars, the equivalent thereof
in the Specified Currency) or more in aggregate principal amount of Notes
(whether having identical or different terms and provisions) will be entitled to
receive interest payments on such Interest Payment Date by wire transfer of
immediately available funds if appropriate wire transfer instructions have been
received in writing by the Trustee not less than 15 calendar days prior to such
Interest Payment Date. Any such wire transfer instructions received by the
Trustee shall remain in effect until revoked by such Holder.
If any Interest Payment Date other than the Maturity Date falls on a day
that is not a Business Day, the required payment of interest shall be made on
the next succeeding Business Day, except that if LIBOR is an applicable Interest
Rate Basis and such Business Day falls in the next succeeding calendar month,
such Interest Payment Date shall be the immediately preceding Business Day. If
the Maturity Date falls on a day that is not a Business Day, the payment of
principal, premium, if any, and interest, shall be made on the next succeeding
Business Day, with the same force and effect as if made on the date such payment
was due, and no interest shall accrue from and after the Maturity Date to the
date of such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day other than a Saturday, Sunday
or other day on which banking institutions in The City of New York are
authorized or obligated by law, regulation or executive order to close;
provided, however, that if the Specified Currency is other than United States
dollars, such day is also a Business Day in the Principal Financial Center (as
defined below) of the country issuing the Specified Currency (or, if the
Specified Currency is Euro, such day is also a day on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open);
provided, further, that if LIBOR is an applicable Interest Rate Basis, such day
is also a London Business Day (as defined below). "London Business Day" means a
day on which dealings in deposits in U.S. dollars are transacted in the London
interbank market. "Principal Financial Center" means the capital city of the
country issuing the Specified Currency except that with respect to United States
dollars, Australian dollars, Deutsche marks, Dutch guilders, Italian lire and
Swiss francs, the "Principal Financial Center" shall be The City of New York,
Sydney (and, solely with respect to the Specified Currency, Melbourne),
Frankfurt, Amsterdam, Milan, London and Zurich, respectively.
The Issuer is obligated to make payment of principal, premium, if any, and
interest in respect of this Note in the Specified Currency or, (i) if such
Specified Currency (other than Euro)
4
<PAGE> 5
is not at the time of such payment legal tender for the payment of public and
private debts, in such other coin or currency of the country which issued the
Specified Currency as at the time of such payment is legal tender for the
payment of such debts or, (ii) if such currency is Euro, in such other coin or
currency which at the time of payment is then legal tender in the member states
of the European Union that have adopted the single currency in accordance with
the Treaty establishing the European Community, as amended by the Treaty on
European Union. If the Specified Currency is other than United States dollars,
except as otherwise provided below, any such amounts so payable by the Issuer
will be converted by the Exchange Rate Agent specified above into United States
dollars for payment to the Holder of this Note.
If the Specified Currency is other than United States dollars, the Holder
of this Note may elect to receive any amount payable hereunder in such Specified
Currency. If the Holder of this Note shall not have duly made an election to
receive all or a specified portion of any payment of principal, premium, if any,
and/or interest in respect of this Note in the Specified Currency, any United
States dollar amount to be received by the Holder of this Note will be based on
the highest bid quotation in The City of New York received by the Exchange Rate
Agent at approximately 11:00 A.M., New York City time, on the second Business
Day preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent or one of the Agents)
selected by the Exchange Rate Agent and approved by the Issuer for the purchase
by the quoting dealer of the Specified Currency for United States dollars for
settlement on such payment date in the aggregate amount of the Specified
Currency payable to all Holders of Notes scheduled to receive United States
dollar payments and at which the applicable dealer commits to execute a
contract. If three such bid quotations are not available, payments on this Note
will be made in the Specified Currency. All currency exchange costs will be
borne by the Holder of this Note by deductions from such payments.
If the Specified Currency is other than United States dollars, the Holder
of this Note may elect to receive all or a specified portion of any payment of
principal, premium, if any, and/or interest in respect of this Note in the
Specified Currency by submitting a written request for such payment to the
Trustee at its corporate trust office in The City of New York on or prior to the
applicable Record Date or at least 15 calendar days prior to the Maturity Date,
as the case may be. Such written request may be mailed or hand delivered or sent
by cable, telex or other form of facsimile transmission. The Holder of this Note
may elect to receive all or a specified portion of all future payments in the
Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the Holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency, but the
Specified Currency is not available due to the imposition of exchange controls
or other circumstances beyond the control of the Issuer, the Issuer will be
entitled to satisfy its obligations to the Holder of this Note by making such
payment in United States dollars on the basis of the Market Exchange Rate (as
defined below) determined by the Exchange Rate Agent on the second Business Day
prior to such payment date or, if such Market Exchange Rate is not
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<PAGE> 6
then available, on the basis of the most recently available Market Exchange
Rate. The "Market Exchange Rate" for the Specified Currency means the noon
dollar buying rate in The City of New York for cable transfers for the Specified
Currency as certified for customs purposes (or, if not so certified, as
otherwise determined) by the Federal Reserve Bank of New York. Any payment made
in United States dollars under such circumstances shall not constitute an Event
of Default (as defined in the Indenture).
All determinations referred to above made by the Exchange Rate Agent shall
be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holder of this Note.
The Issuer agrees to indemnify the Holder of any Note against any loss
incurred by such Holder as a result of any judgment or order being given or made
against the Issuer for any amount due hereunder and such judgment or order
requiring payment in a currency (the "Judgment Currency") other than the
Specified Currency, and as a result of any variation between (i) the rate of
exchange at which the Specified Currency amount is converted into the Judgment
Currency for the purpose of such judgment or order, and (ii) the rate of
exchange at which such Holder, on the date of payment of such judgment or order,
is able to purchase the Specified Currency with the amount of the Judgment
Currency actually received by such Holder, as the case may be. The foregoing
indemnity constitutes a separate and independent obligation of the Issuer and
continues in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" includes any premiums and costs of
exchange payable in connection with the purchase of, or conversion into, the
relevant currency.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof and, if so specified on the face hereof, in an Addendum
hereto, which further provisions shall have the same force and effect as if set
forth on the face hereof.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Provisions" apply to this Note as specified above, this Note
shall be subject to the terms set forth in such Addendum or such
"Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
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<PAGE> 7
IN WITNESS WHEREOF, National Consumer Cooperative Bank has caused this Note
to be duly executed by one of its duly authorized officers.
NATIONAL CONSUMER COOPERATIVE BANK
By
------------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of
the series designated therein referred
to in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By
-----------------------------------
Authorized Signatory
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<PAGE> 8
NATIONAL CONSUMER COOPERATIVE BANK
MEDIUM-TERM SENIOR NOTE, SERIES B
(FLOATING RATE)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Issuer issued and to be issued under an Indenture, dated as
of January 15, 1997, as amended, modified or supplemented from time to time (the
"Indenture"), between the Issuer and Bank One Trust Company, N.A. (as successor
trustee to The First National Bank of Chicago), as trustee (the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Issuer, the Trustee and the Holders of the Securities, and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Note is one of the series of Securities designated as "Medium-Term Senior Notes,
Series B" (the "Notes"). All terms used but not defined in this Note or in an
Addendum hereto shall have the meanings assigned to such terms in the Indenture
or on the face hereof, as the case may be.
This Note is issuable only in registered form without coupons in minimum
denominations of U.S.$1,000 and integral multiples of U.S.$1,000 or other
Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Maturity Date.
This Note will be subject to redemption at the option of the Issuer on any
date on or after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S. $1,000 or
other integral multiple of an Authorized Denomination (provided that any
remaining principal amount hereof shall be at least U.S. $1,000 or such other
minimum Authorized Denomination), at the Redemption Price (as defined below),
together with unpaid interest accrued thereon to the date fixed for redemption
(the "Redemption Date"), on written notice given to the Holder hereof (in
accordance with the provisions of the Indenture) not more than 60 nor less than
30 calendar days prior to the Redemption Date. The "Redemption Price" shall be
the Initial Redemption Percentage specified on the face hereof (as adjusted by
the Annual Redemption Percentage Reduction, if any, specified on the face hereof
as set forth below) multiplied by the unpaid principal amount of this Note to be
redeemed. The Initial Redemption Percentage shall decline at each anniversary of
the Initial Redemption Date by the Annual Redemption Percentage Reduction, if
any, until the Redemption Price is 100% of unpaid principal amount to be
redeemed. In the event of redemption of this Note in part only, a new Note of
like tenor for the unredeemed portion hereof and otherwise having the same terms
and provisions as this Note shall be issued by the Issuer in the name of the
Holder hereof upon the presentation and surrender hereof.
This Note will be subject to repayment at the option of the Holder prior to
its Stated Maturity Date on any Optional Repayment Date(s), if any, indicated
above. If no Optional
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<PAGE> 9
Repayment Dates are set forth above, this Note may not be so repaid at the
option of the Holder hereof prior to the Stated Maturity Date. On any Optional
Repayment Date, this Note shall be repayable in whole or in part in an amount
equal to $1,000 or any integral multiple thereof (provided that any remaining
principal amount shall be an Authorized Denomination) at the option of the
Holder hereof at a repayment price equal to 100% of the principal amount to be
repaid, together with interest thereon payable to the date of repayment. For
this Note to be repaid in whole or in part at the option of the Holder hereof,
the Holder must give to the Trustee not less than 30 days' nor more than 60
days' notice. This notice shall consist of either (i) this Note with the form
entitled "Option to Elect Repayment" duly completed, or (ii) a telegram,
facsimile transmission or a letter from a member of a national securities
exchange or of the National Association of Securities Dealers, Inc. or a
commercial bank or trust company in the United States, setting forth the name of
the Holder, the principal amount of this Note, the principal amount of this Note
to be repaid, the certificate number or a description of the tenor and terms of
this Note, a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Note, together with the duly completed form
entitled "Option to Elect Repayment," will be received by the Trustee not later
than the fifth Business Day after the date of telegram, facsimile transmission
or letter; provided, however, that the telegram, facsimile transmission or
letter shall only be effective if this Note and the form, duly completed, are
received by the Trustee by the fifth Business Day. Exercise of such repayment
option by the Holder hereof shall be irrevocable. In the event of repayment of
this Note in part only, a new Note for the unpaid portion hereof shall be issued
in the name of the Holder hereof upon the surrender hereof.
If this Note is specified on the face hereof to be an Original Issue
Discount Note, the amount payable to the Holder of this Note in the event of
redemption, repayment or acceleration of maturity of this Note will be equal to
the sum of (1) the Issue Price specified on the face hereof (increased by any
accruals of the Discount, as defined below) and, in the event of any redemption
of this Note (if applicable), multiplied by the Initial Redemption Percentage
(as adjusted by the Annual Redemption Percentage Reduction, if applicable) and
(2) any unpaid interest accrued thereon to the Redemption Date, Repayment Date
or date of acceleration of maturity, as the case may be. The difference between
the Issue Price and 100% of the principal amount of this Note is referred to
herein as the "Discount."
For purposes of determining the amount of Discount that has accrued as of
any Redemption Date, Repayment Date or date of acceleration of maturity of this
Note, such Discount will be accrued so as to cause an assumed yield on the Note
to be constant. The assumed constant yield will be calculated using a 30-day
month, 360-day year convention, a compounding period that, except for the
Initial Period (as defined below), corresponds to the shortest period between
Interest Payment Dates (with ratable accruals within a compounding period), a
coupon rate equal to the initial interest rate applicable to this Note and an
assumption that the maturity of this Note will not be accelerated. If the period
from the Original Issue Date to the initial Interest Payment Date (the "Initial
Period") is shorter than the compounding period for this Note, a proportionate
amount of the yield for an entire compounding period will be accrued. If the
Initial Period is longer than the compounding period, then such period will be
divided into a regular compounding period and a short period, with the short
period being treated as provided in the preceding sentence.
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<PAGE> 10
Unless the face hereof specifies that either "Other/Additional Provisions"
or an Addendum hereto applies, in each case, relating to a different interest
rate formula, this Note shall be designated as a "Floating Rate Note" and,
except as set forth below or specified on the face hereof or in an Addendum
hereto, shall bear interest at the rate determined by reference to the
applicable Interest Rate Basis or Bases (a) plus or minus the Spread, if any,
and/or (b) multiplied by the Spread Multiplier, if any, in each case as
specified on the face hereof. Commencing on the Initial Interest Reset Date, the
rate at which interest on this Note shall be payable shall be reset as of each
Interest Reset Date specified on the face hereof; provided, however, that the
interest rate in effect for the period, if any, from the Original Issue Date to
the Initial Interest Reset Date shall be the Initial Interest Rate.
The interest rate borne by this Note will be determined as follows:
Except as set forth above or specified on the face hereof or in an Addendum
hereto, the interest rate in effect on each day shall be (i) if such day is an
Interest Reset Date, the interest rate determined as of the Interest
Determination Date (as defined below) immediately preceding such Interest Reset
Date or (ii) if such day is not an Interest Reset Date, the interest rate
determined as of the Interest Determination Date immediately preceding the most
recent Interest Reset Date. If any Interest Reset Date would otherwise be a day
that is not a Business Day, such Interest Reset Date shall be postponed to the
next succeeding Business Day, except that if LIBOR is an applicable Interest
Rate Basis and the next succeeding London Business Day falls in the next
succeeding calendar month, such Interest Reset Date shall be the immediately
preceding London Business Day. In addition, if the Treasury Rate is an
applicable Interest Rate Basis and the Interest Determination Date would
otherwise fall on an Interest Reset Date, then such Interest Reset Date will be
postponed to the next succeeding Business Day.
The interest rate applicable to the period for which interest is being
calculated commencing on the related Interest Reset Date will be determined by
the Calculation Agent as of the applicable Interest Determination Date and will
be calculated by the Calculation Agent on or prior to the Calculation Date (as
defined below), except with respect to LIBOR, which will be calculated on such
Interest Determination Date. The "Interest Determination Date" with respect to
the CD Rate, the CMT Rate, the Commercial Paper Rate, the Federal Funds Rate and
the Prime Rate will be the second Business Day immediately preceding the
applicable Interest Reset Date; and the "Interest Determination Date" with
respect to LIBOR shall be the second London Business Day immediately preceding
the applicable Interest Reset Date, unless the Designated LIBOR Currency is
British pounds sterling, in which case the "Interest Determination Date" will be
the applicable Interest Reset Date. The "Interest Determination Date" with
respect to the Treasury Rate shall be the day in the week in which the
applicable Interest Reset Date falls on which day Treasury Bills (as defined
below) are normally auctioned (Treasury Bills are normally sold at an auction
held on Monday of each week, unless such Monday is a legal holiday, in which
case the auction is normally held on the immediately succeeding Tuesday,
although such auction may be held on the preceding Friday); provided, however,
that if an auction is held on the Friday of the week preceding the applicable
Interest Reset Date, the "Interest Determination Date" shall be such preceding
Friday. If the interest rate of this Note is determined with reference to two or
more Interest Rate Bases specified on the face hereof, the "Interest
Determination Date" pertaining to this Note shall be the most recent Business
Day which is at least two Business Days prior to the applicable Interest Reset
Date on which each Interest Rate
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<PAGE> 11
Basis is determinable. Each Interest Rate Basis shall be determined as of such
date, and the applicable interest rate shall take effect on the related Interest
Reset Date.
Unless otherwise specified on the face hereof or in an Addendum hereto, the
rate with respect to each Interest Rate Basis will be determined in accordance
with the applicable provisions below.
CD Rate. If an Interest Rate Basis for this Note is specified on the face
hereof as the CD Rate, the CD Rate shall be determined as of the applicable
Interest Determination Date (a "CD Rate Interest Determination Date") as the
rate on such date for negotiable United States dollar certificates of deposit
having the Index Maturity specified on the face hereof as published in H.15(519)
(as defined below) under the heading "CDs (secondary market)", or, if not
published by 3:00 P.M., New York City time, on the related Calculation Date, the
rate on such CD Rate Interest Determination Date for negotiable United States
dollar certificates of deposit of the Index Maturity as in H.15 Daily Update (as
hereinafter defined), or such other recognized electronic source used for the
purpose of displaying such rate, under the caption "CDs (secondary market)". If
such rate is not yet published in H.15(519), H.15 Daily Update or another
recognized electronic source by 3:00 P.M., New York City time, on the related
Calculation Date, then the CD Rate on such CD Rate Interest Determination Date
will be calculated by the Calculation Agent specified on the face hereof and
will be the arithmetic mean of the secondary market offered rates as of 10:00
A.M., New York City time, on such CD Rate Interest Determination Date, of three
leading nonbank dealers in negotiable United States dollar certificates of
deposit in The City of New York selected by the Calculation Agent (which may
include one or more of the Agents or their affiliates) for negotiable United
States dollar certificates of deposit of major United States money market banks
for negotiable United States dollar certificates of deposit with a remaining
maturity closest to the Index Maturity in an amount that is representative for a
single transaction in that market at that time; provided, however, that if the
dealers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the CD Rate determined as of such CD Rate Interest Determination
Date will be the CD Rate in effect on such CD Rate Interest Determination Date.
"H.15(519)" means the weekly statistical release designated as such, or any
successor publication, published by the Board of Governors of the Federal
Reserve System.
"H.15 Daily Update" means the daily update of H.15(519), available through
the world-wide-web site of the Board of Governors of the Federal Reserve System
at http://www.bog.frb.fed.us/releases/h15/update, or any successor site or
publication.
CMT Rate. If an Interest Rate Basis for this Note is specified on the face
hereof as the CMT Rate, the CMT Rate shall be determined as of the applicable
Interest Determination Date (a "CMT Rate Interest Determination Date") as the
rate displayed on the Designated CMT Telerate Page (as defined below) under the
caption "...Treasury Constant Maturities...Federal Reserve Board Release
H.15...Mondays Approximately 3:45 P.M.", under the column for the Designated CMT
Maturity Index (as defined below) for (i) if the Designated CMT Telerate Page is
7051, the rate on such CMT Rate Interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the weekly or monthly average, as
specified on the face hereof, for the week or month, as applicable, ended
immediately preceding the week or month, as applicable, in which the related CMT
Rate Interest Determination Date falls. If such rate is no longer displayed on
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<PAGE> 12
the relevant page or is not so displayed by 3:00 P.M., New York City time, on
the related Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in H.15(519). If such rate is no
longer published or is not so published by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate on such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in
H.15(519). If such information is not so provided by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate on the CMT Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean of the secondary market
offered rates as of approximately 3:30 P.M., New York City time, on such CMT
Rate Interest Determination Date reported, according to their written records,
by three leading primary United States government securities dealers (each, a
"Reference Dealer") in The City of New York (which may include one or more of
the Agents or their affiliates) selected by the Calculation Agent (from five
such Reference Dealers selected by the Calculation Agent and eliminating the
highest quotation (or, in the event of equality, one of the highest) and the
lowest quotation (or, in the event of equality, one of the lowest)), for the
most recently issued direct noncallable fixed rate obligations of the United
States ("Treasury Notes") with an original maturity of approximately the
Designated CMT Maturity Index and a remaining term to maturity of not less than
such Designated CMT Maturity Index minus one year. If the Calculation Agent is
unable to obtain three such Treasury Note quotations, the CMT Rate on such CMT
Rate Interest Determination Date will be calculated by the Calculation Agent and
will be a yield to maturity based on the arithmetic mean of the secondary market
offered rates as of approximately 3:30 P.M., New York City time, on such CMT
Rate Interest Determination Date of three Reference Dealers in The City of New
York (from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least U.S.$100 million. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offered rates obtained and neither the highest nor the
lowest of such quotes will be eliminated; provided, however, that if fewer than
three Reference Dealers selected by the Calculation Agent are quoting as
mentioned herein, the CMT Rate determined as of such CMT Rate Interest
Determination Date will be the CMT Rate in effect on such CMT Rate Interest
Determination Date. If two Treasury Notes with an original maturity as described
in the second preceding sentence have remaining terms to maturity equally close
to the Designated CMT Maturity Index, the Calculation Agent will obtain
quotations for the Treasury Note with the shorter remaining term to maturity.
"Designated CMT Telerate Page" means the display on Bridge Telerate, Inc.
(or any successor service) on the page specified on the face hereof (or any
other page as may replace such page on such service for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519) or, if no such
page is specified on the face hereof, page 7052.
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<PAGE> 13
"Designated CMT Maturity Index" means the original period to maturity of
the United States Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified on the face hereof with respect to which the CMT Rate will be
calculated or, if no such maturity is specified on the face hereof, 2 years.
Commercial Paper Rate. If an Interest Rate Basis for this Note is specified
on the face hereof as the Commercial Paper Rate, the Commercial Paper Rate shall
be determined as of the applicable Interest Determination Date (a "Commercial
Paper Rate Interest Determination Date") as the Money Market Yield (as defined
below) on such date of the rate for commercial paper having the Index Maturity
as published in H.15(519) under the caption "Commercial Paper-Nonfinancial" or,
if not so published by 3:00 P.M., New York City time, on the related Calculation
Date, the rate on such Commercial Paper Rate Interest Determination Date for
commercial paper having the Index Maturity as published in H.15 Daily Update, or
such other recognized electronic source used for the purpose of displaying such
rate, under the caption "Commercial Paper-Nonfinancial". If such rate is not yet
published in H.15(519), H.15 Daily Update or another recognized electronic
source by 3:00 P.M., New York City time, on such Calculation Date, then the
Commercial Paper Rate on such Commercial Paper Rate Interest Determination Date
will be calculated by the Calculation Agent and shall be the Money Market Yield
of the arithmetic mean of the offered rates at approximately 11:00 A.M., New
York City time, on such Commercial Paper Rate Interest Determination Date of
three leading dealers of United States dollar commercial paper in The City of
New York selected by the Calculation Agent (which may include one or more of the
Agents or their affiliates) for commercial paper having the Index Maturity
placed for industrial issuers whose bond rating is "Aa", or the equivalent, from
a nationally recognized statistical rating organization; provided, however, that
if the dealers so selected by the Calculation Agent are not quoting as mentioned
in this sentence, the Commercial Paper Rate determined as of such Commercial
Paper Rate Interest Determination Date will be the Commercial Paper Rate in
effect on such Commercial Paper Rate Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage) calculated
in accordance with the following formula:
D X 360
Money Market Yield = ----------------------- X 100
360 - (D X M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the applicable interest period for which interest is being
calculated.
Federal Funds Rate. If an Interest Rate Basis for this Note is specified on
the face hereof as the Federal Funds Rate, the Federal Funds Rate shall be
determined as of the applicable Interest Determination Date (a "Federal Funds
Rate Interest Determination Date") as the rate on such date for United States
dollar federal funds as published in H.15(519) under the heading "Federal Funds
(Effective)", as such rate is displayed on Bridge Telerate, Inc. (or any
successor service) on page 120 (or any other page as may replace such page on
such service) ("Telerate Page 120"), or, if such rate does not appear on
Telerate page 120 or is not so published by 3:00 P.M., New York City time, on
the Calculation Date, the rate on such Federal Funds Rate Interest Determination
Date for United States dollar federal funds as published in H.15 Daily Update,
or such other recognized electronic source used for the purpose of displaying
such rate, under the
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<PAGE> 14
caption "Federal Funds (Effective)." If such rate does not appear on Telerate
Page 120 or is not yet published in H.15(519), H.15 Daily Update or another
recognized electronic source by 3:00 P.M., New York City time, on the related
Calculation Date, then the Federal Funds Rate on such Federal Funds Interest
Determination Date shall be calculated by the Calculation Agent and will be the
arithmetic mean of the rates for the last transaction in overnight United States
dollar federal funds arranged by three leading brokers of United States dollar
federal funds transactions in The City of New York (which may include one or
more of the Agents or their affiliates) selected by the Calculation Agent, prior
to 9:00 A.M., New York City time, on such Federal Funds Rate Interest
Determination Date; provided, however, that if the brokers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Federal
Funds Rate determined as of such Federal Funds Rate Interest Determination Date
will be the Federal Funds Rate in effect on such Federal Funds Rate Interest
Determination Date.
LIBOR. If an Interest Rate Basis for this Note is specified on the face
hereof as LIBOR, LIBOR shall be determined by the Calculation Agent as of the
applicable Interest Determination Date (a "LIBOR Interest Determination Date")
in accordance with the following provisions:
(i) (a) if "LIBOR Telerate" is specified on the face hereof or if neither
"LIBOR Reuters" nor "LIBOR Telerate" is specified on the face hereof as the
method for calculating LIBOR, the rate for deposits in the Designated LIBOR
Currency having the Index Maturity specified on the face hereof, commencing on
such Interest Reset Date, that appears on the Designated LIBOR Page (as defined
below) as of 11:00 A.M., London time, on such LIBOR Interest Determination Date;
or (b) if "LIBOR Reuters" is specified on the face hereof, the arithmetic mean
of the offered rates (unless the Designated LIBOR Page (as defined below) by its
terms provides only for a single rate, in which case such single rate will be
used) for deposits in the Designated LIBOR Currency having the Index Maturity,
commencing on the applicable Interest Reset Date, that appear (or, if only a
single rate is required as aforesaid, appears) on the Designated LIBOR Page as
of 11:00 A.M., London time, on such LIBOR Interest Determination Date. If fewer
than two such offered rates so appear, or if no such rate so appears, as
applicable, LIBOR on such LIBOR Interest Determination Date shall be determined
in accordance with the provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which fewer
than two offered rates appear, or no rate appears, as the case may be, on the
Designated LIBOR Page as specified in clause (i) above, the Calculation Agent
shall request the principal London office of each of four major reference banks
(which may include the Agents or their affiliates) in the London interbank
market, as selected by the Calculation Agent, to provide the Calculation Agent
with its offered quotation for deposits in the Designated LIBOR Currency for the
period of the Index Maturity, commencing on the applicable Interest Reset Date,
to prime banks in the London interbank market at approximately 11:00 A.M.,
London time, on such LIBOR Interest Determination Date and in a principal amount
that is representative for a single transaction in the Designated LIBOR Currency
in such market at such time. If at least two such quotations are so provided,
then LIBOR on such LIBOR Interest Determination Date will be the arithmetic mean
of such quotations. If fewer than two such quotations are so provided, then
LIBOR on such LIBOR Interest Determination Date will be the arithmetic mean of
the rates quoted at approximately 11:00 A.M., in the applicable Principal
Financial Center, on such LIBOR Interest Determination Date by three major banks
which may include affiliates of the Agent in such Principal Financial Center
selected by the Calculation Agent for loans in the Designated LIBOR
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<PAGE> 15
Currency to leading European banks, having the Index Maturity and in a principal
amount that is representative for a single transaction in the Designated LIBOR
Currency in such market at such time; provided, however, that if the banks so
selected by the Calculation Agent are not quoting as mentioned in this sentence,
LIBOR determined as of such LIBOR Interest Determination Date shall be LIBOR in
effect on such LIBOR Interest Determination Date.
"Designated LIBOR Currency" means the currency specified on the face hereof
as to which LIBOR shall be calculated or, if no such currency is specified on
the face hereof, United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on the
face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page specified on the face hereof (or any other page
as may replace such page on such service) for the purpose of displaying the
London interbank rates of major banks for the Designated LIBOR Currency, or (b)
if "LIBOR Telerate" is specified on the face hereof or neither "LIBOR Reuters"
nor "LIBOR Telerate" is specified on the face hereof as the method for
calculating LIBOR, the display on Bridge Telerate, Inc. (or any successor
service) on the page specified on the face hereof (or any other page as may
replace such page on such service) for the purpose of displaying the London
interbank rates of major banks for the Designated LIBOR Currency.
Prime Rate. If an Interest Rate Basis for this Note is specified on the
face hereto as the Prime Rate, the Prime Rate shall be determined as of the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on such date as such rate is published in H.15(519) under the
caption "Bank Prime Loan" or, if not published by 3:00 P.M., New York City time,
on the related Calculation Date, the rate on such Prime Rate Interest
Determination Date as published in H.15 Daily Update, or such other recognized
electronic source used for the purpose of displaying such rate, under the
caption "Bank Prime Loan." If such rate is not yet published in H.15(519), H.15
Daily Update or another recognized electronic source by 3:00 P.M., New York City
time, on the related Calculation Date, the Prime Rate shall be the arithmetic
mean of the rates of interest publicly announced by each bank that appears on
the Reuters Screen US PRIME 1 Page (as defined below) as such bank's prime rate
or base lending rate as of 11:00 A.M., New York City time, on such Prime Rate
Interest Determination Date. If fewer than four such rates so appear on the
Reuters Screen US PRIME 1 Page for such Prime Rate Interest Determination Date,
then the Prime Rate shall be the arithmetic mean of the prime rates or base
lending quoted on the basis of the actual number of days in the year divided by
a 360-day year as of the close of business on such Prime Rate Interest
Determination Date by three major banks in The City of New York selected by the
Calculation Agent (which may include the Agents or their affiliates); provided,
however, that if the banks or trust companies so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Prime Rate determined
as of such Prime Rate Interest Determination Date will be the Prime Rate in
effect on such Prime Rate Interest Determination Date.
"Reuters Screen US PRIME 1 Page" means the display on the Reuter Monitor
Money Rates Service (or any successor service) on the "US PRIME 1" Page (or such
other page as may replace the US PRIME 1 Page on such service) for the purpose
of displaying prime rates or base lending rates of major United States banks.
15
<PAGE> 16
Treasury Rate. If an Interest Rate Basis for this Note is specified on the
face hereof as the Treasury Rate, the Treasury Rate shall be determined as of
the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate from the auction held on such Treasury Rate
Interest Determination Date (the "Auction") of direct obligations of the United
States ("Treasury Bills") having the Index Maturity under the caption
"INVESTMENT RATE" on the display on Bridge Telerate, Inc. (or any successor
service) on page 56 (or any other page as may replace such page on such service)
("Telerate Page 56") or page 57 (or any other page as may replace such page on
such service) ("Telerate Page 57") or, if not so published by 3:00 P.M., New
York City time, on the related Calculation Date, the Bond Equivalent Yield (as
hereinafter defined) of the rate for such Treasury Bills as published in H.15
Daily Update, or such other recognized electronic source used for the purpose of
displaying such rate, under the caption "U.S. Government Securities/Treasury
Bills/Auction High" or, if not so published by 3:00 P.M., New York City time, on
the related Calculation Date, the auction rate of such Treasury Bills (expressed
as a bond equivalent yield on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) as otherwise announced by the United
States Department of the Treasury. In the event that the results of the Auction
of Treasury Bills having the Index Maturity are not so published by 3:00 P.M.,
New York City time, on such Calculation Date, or if no such Auction is held,
then the Treasury Rate will be the rate (expressed as a bond equivalent yield on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) on such Treasury Rate Interest Determination Date of Treasury Bills
having the Index Maturity as published in H.15(519) under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market" or, if not yet published
by 3:00 P.M., New York City time, on the related Calculation Date, the rate on
such Treasury Rate Interest Determination Date of such Treasury Bills as
published in H.15 Daily Update, or such other recognized electronic source used
for the purpose of displaying such rate, under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market". If such rate is not yet published
in H.15(519), H.15 Daily Update or another recognized electronic source, then
the Treasury Rate shall be calculated by the Calculation Agent and shall be a
yield to maturity (expressed as a bond equivalent yield on the basis of a year
of 365 or 366 days, as applicable, and applied on a daily basis) of the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
P.M., New York City time, on such Treasury Rate Interest Determination Date, of
three primary United States government securities dealers (which may include the
Agents or their affiliates) selected by the Calculation Agent, for the issue of
Treasury Bills with a remaining maturity closest to the Index Maturity;
provided, however, that if the dealers so selected by the Calculation Agent are
not quoting as mentioned in this sentence, the Treasury Rate determined as of
such Treasury Rate Interest Determination Date will be the Treasury Rate in
effect on such Treasury Rate Interest Determination Date.
"Bond Equivalent Yield" means a yield calculated in accordance with the
following formula and expressed as a percentage:
D - N
Bond Equivalent Yield = ---------------------- - 100
360 - (D - M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted on a
bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the interest period for which interest is
being calculated.
16
<PAGE> 17
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law of
general application.
The "Calculation Date", if applicable, pertaining to any Interest
Determination Date shall be the earlier of (i) the tenth calendar day after such
Interest Determination Date or, if such day is not a Business Day, the next
succeeding Business Day or (ii) the Business Day immediately preceding the
applicable Interest Payment Date or the Maturity Date, as the case may be. At
the request of the Holder hereof, the Calculation Agent will provide to the
Holder hereof the interest rate hereon then in effect and, if determined, the
interest rate that will become effective as a result of a determination made for
the next succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by multiplying the
principal amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the applicable Interest Period. Unless otherwise specified as the Day Count
Convention on the face hereof, the interest factor for each such date shall be
computed by dividing the interest rate applicable to such day by 360 if the CD
Rate, the Commercial Paper Rate, the Federal Funds Rate, LIBOR or the Prime Rate
is an applicable Interest Rate Basis or by the actual number of days in the year
if the CMT Rate or the Treasury Rate is an applicable Interest Rate Basis.
Unless otherwise specified as the Day Count Convention on the face hereof, the
interest factor for this Note, if the interest rate is calculated with reference
to two or more Interest Rate Bases, shall be calculated in each period in the
same manner as if only the Applicable Interest Rate Basis specified on the face
hereof applied.
All percentages resulting from any calculation on this Note shall be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards, and all amounts used in or
resulting from such calculation on this Note shall be rounded, in the case of
United States dollars, to the nearest cent or, in the case of a Specified
Currency other than United States dollars, to the nearest unit (with one-half
cent or unit being rounded upwards).
If an Event of Default shall occur and be continuing, the principal of the
Notes may, and in certain cases shall, be accelerated in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Securities at any time by the Issuer
and the Trustee with the consent of the Holders of not less than 66-2/3% of the
aggregate principal amount of all Securities at the time outstanding and
affected thereby. The Indenture also contains provisions permitting the Holders
of not less than a majority of the aggregate principal amount of the outstanding
Securities of any series, on behalf of the Holders of all such Securities, to
waive compliance by the Issuer with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the Holders of not less than a
majority of the aggregate principal amount of the outstanding Securities of any
17
<PAGE> 18
series, in certain instances, to waive, on behalf of all of the Holders of
Securities of such series, certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and other Notes issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, the transfer of this Note is registrable in the Security
Register of the Issuer upon surrender of this Note for registration of transfer
at the office or agency of the Issuer in any place where the principal hereof
and any premium or interest hereon are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the
Security Registrar duly executed by, the Holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the Holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
18
<PAGE> 19
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
----------------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------
| |
| |
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
- --------------------------------------------------------------------------------
this Note and all rights thereunder hereby irrevocably constituting and
appointing
Attorney
- -----------------------------------------------------------------------
to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated:
----------------------- ----------------------------------------
----------------------------------------
Notice: The signature(s) on this
Assignment must correspond with the
name(s) as written upon the face of this
Note in every particular, without
alteration or enlargement or any change
whatsoever.
19
<PAGE> 20
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Issuer to
repay this Note (or portion hereof specified below) pursuant to its terms at a
price equal to 100% of the principal amount to be repaid, together with unpaid
interest accrued hereon to the Repayment Date, to the undersigned, at___________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate trust
office in the Borough of Manhattan, The City of New York, currently located at
________________________________________________ not more than 60 nor less
than 30 calendar days prior to the Repayment Date, this Note with this "Option
to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or other
integral multiple of an Authorized Denomination) (provided that any remaining
principal amount shall be at least U.S.$1,000 or the minimum Authorized
Denomination) which the Holder elects to have repaid and specify the
denomination or denominations (which shall be U.S.$1,000 or the minimum
Authorized Denomination) of the Notes to be issued to the Holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $
-------------- ----------------------------------------
Date: Notice: The signature(s) on this Option
----------------------- to Elect Repayment must correspond with
the name(s) as written upon the face of
this Note in every particular, without
alteration or enlargement or any change
whatsoever.
20
<PAGE> 1
EXHIBIT 4.4
[FACE OF NOTE]
THIS NOTE IS NOT GUARANTEED BY THE UNITED STATES AND DOES NOT CONSTITUTE A DEBT
OR OBLIGATION OF THE UNITED STATES OR ANY AGENCY OR INSTRUMENTALITY THEREOF.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE
TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
<TABLE>
<CAPTION>
REGISTERED
No. FXR- CUSIP No.: PRINCIPAL AMOUNT:
---------------- -----------------
NATIONAL CONSUMER COOPERATIVE BANK
MEDIUM-TERM SUBORDINATED NOTE, SERIES B
(FIXED RATE)
<S> <C> <C>
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY
DATE:
INTEREST PAYMENT DATE(S)
[ ] May 1 and November 1 [ ] CHECK IF ORIGINAL ISSUE INITIAL REDEMPTION
[ ] Other: DISCOUNT NOTE DATE:
Issue Price: %
INITIAL REDEMPTION ANNUAL REDEMPTION OPTIONAL REPAYMENT
PERCENTAGE: % PERCENTAGE REDUCTION: DATE(S):
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION EXCHANGE RATE
[ ] United States dollars (if other than $1,000 and integral AGENT:
[ ] Other: multiples thereof):
REGULAR RECORD DATE(S) ADDENDUM ATTACHED OTHER/ADDITIONAL PROVISIONS:
(If other than April 15 and October [ ]YES [ ] Yes
15): [ ]NO [ ] No
</TABLE>
<PAGE> 2
National Consumer Cooperative Bank, a corporation duly organized and
existing under the laws of the United States (the "Issuer", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to CEDE & Co., or registered assigns,
the Principal Amount of , on the Stated Maturity Date specified above (or any
Redemption Date or Repayment Date, each as defined on the reverse hereof, or
any earlier date of acceleration of maturity) (each such date being hereinafter
referred to as the "Maturity Date" with respect to the principal repayable on
such date) and to pay interest thereon (and on any overdue principal, premium
and/or interest to the extent legally enforceable) at the Interest Rate per
annum specified above, until the principal hereof is paid or duly made
available for payment. The Issuer will pay interest in arrears on each Interest
Payment Date, if any, specified above (each, an "Interest Payment Date"),
commencing with the first Interest Payment Date next succeeding the Original
Issue Date specified above, and on the Maturity Date; provided, however, that
if the Original Issue Date occurs between a Regular Record Date (as defined
below) and the next succeeding Interest Payment Date, interest payments will
commence on the second Interest Payment Date next succeeding the Original Issue
Date to the registered holder (the "Holder") of this Note on the Regular Record
Date with respect to such second Interest Payment Date. Interest on this Note
will be computed on the basis of a 360-day year of twelve 30-day months.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly
provided for (or from, and including, the Original Issue Date if no interest
has been paid or duly provided for) to, but excluding, the applicable Interest
Payment Date or the Maturity Date, as the case may be (each, an "Interest
Period"). The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, subject to certain exceptions described herein,
be paid to the person in whose name this Note (or one or more predecessor
Notes, as defined on the reverse hereof) is registered at the close of business
on the April 15 and October 15 (whether or not a Business Day, as defined
below) immediately preceding such Interest Payment Date (unless otherwise
specified on the face hereof) (the "Regular Record Date"); provided, however,
that interest payable on the Maturity Date will be payable to the person to
whom the principal hereof and premium, if any, hereon shall be payable. Any
such interest not so punctually paid or duly provided for on any Interest
Payment Date other than the Maturity Date ("Defaulted Interest") shall
forthwith cease to be payable to the Holder on the close of business on any
Regular Record Date and, instead, shall be paid to the person in whose name
this Note is registered at the close of business on a Special Record Date (the
"Special Record Date") for the payment of such Defaulted Interest to be fixed
by the Trustee hereinafter referred to, notice whereof shall be given to the
Holder of this Note by the Trustee not less than 10 calendar days prior to such
Special Record Date or may be paid at any time in any other lawful manner, all
as more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, upon delivery of a duly completed election form as
contemplated on the reverse hereof) at the office or agency maintained by the
Issuer for that purpose in the Borough of Manhattan, The City of New York,
currently the office of Bank One Trust Company, N.A. (the "Trustee") located at
14 Wall St., 8th Floor, New York, New York 10005, or at such other paying
agency in the Borough of
2
<PAGE> 3
Manhattan, The City of New York, as the Issuer may determine; provided,
however, that if the Specified Currency specified above is other than United
States dollars and such payment is to be made in the Specified Currency in
accordance with the provisions set forth below, such payment will be made by
wire transfer of immediately available funds to an account with a bank
designated by the Holder hereof at least 15 calendar days prior to the Maturity
Date, provided that such bank has appropriate facilities therefor and that this
Note (and, if applicable, a duly completed repayment election form) is
presented and surrendered at the aforementioned office or agency maintained by
the Issuer in time for the Trustee to make such payment in such funds in
accordance with its normal procedures. Payment of interest due on any Interest
Payment Date other than the Maturity Date will be made at the aforementioned
office or agency maintained by the Issuer or, at the option of the Issuer, by
check mailed to the address of the person entitled thereto as such address
shall appear in the Security Register maintained by the Trustee; provided,
however, that a Holder of U.S.$10,000,000 (or, if the Specified Currency is
other than United States dollars, the equivalent thereof in the Specified
Currency) or more in aggregate principal amount of Notes (whether having
identical or different terms and provisions) will be entitled to receive
interest payments on such Interest Payment Date by wire transfer of immediately
available funds if appropriate wire transfer instructions have been received in
writing by the Trustee not less than 15 calendar days prior to such Interest
Payment Date. Any such wire transfer instructions received by the Trustee shall
remain in effect until revoked by such Holder.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any,
and/or interest shall be made on the next succeeding Business Day with the same
force and effect as if made on the date such payment was due, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be, to the date of
such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day other than a Saturday,
Sunday or other day on which banking institutions in The City of New York are
authorized or obligated by law, regulation or executive order to close;
provided, however, that if the Specified Currency is other than United States
dollars, such day is also a Business Day in the Principal Financial Center (as
defined below) of the country issuing the Specified Currency (or, if the
Specified Currency is Euro, such day is also a day on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open).
"Principal Financial Center" means the capital city of the country issuing the
Specified Currency except that with respect to United States dollars,
Australian dollars, Deutsche marks, Dutch guilders, Italian lire and Swiss
francs, the "Principal Financial Center" shall be The City of New York,
Melbourne, Frankfurt, Amsterdam, Milan, London and Zurich, respectively.
The Issuer is obligated to make payment of principal, premium, if any,
and interest in respect of this Note in the Specified Currency or, (i) if such
Specified Currency (other than Euro) is not at the time of such payment legal
tender for the payment of public and private debts in the relevant country, in
such other coin or currency of such country which as at the time of such
payment is legal tender for the payment of such debts or (ii) if such Specified
Currency is Euro, in such other coin or currency which at the time of payment
is then legal tender in the member states of the European Union that have
adopted the single currency in accordance with the Treaty
3
<PAGE> 4
establishing the European Community, as amended by the Treaty on European
Union. If the Specified Currency is other than United States dollars, except as
otherwise provided below, any such amounts so payable by the Issuer will be
converted by the Exchange Rate Agent specified above into United States dollars
for payment to the Holder of this Note.
If the Specified Currency is other than United States dollars, the
Holder of this Note may elect to receive any amounts payable hereunder in such
Specified Currency. If the Holder of this Note shall not have duly made an
election to receive all or a specified portion of any payment of principal,
premium, if any, and/or interest in respect of this Note in the Specified
Currency, any United States dollar amount to be received by the Holder of this
Note will be based on the highest bid quotation in The City of New York
received by the Exchange Rate Agent at approximately 11:00 A.M., New York City
time, on the second Business Day preceding the applicable payment date from
three recognized foreign exchange dealers (one of whom may be the Exchange Rate
Agent or an Agent) selected by the Exchange Rate Agent and approved by the
Issuer for the purchase by the quoting dealer of the Specified Currency for
United States dollars for settlement on such payment date in the aggregate
amount of the Specified Currency payable to all Holders of Notes scheduled to
receive United States dollar payments and at which the applicable dealer
commits to execute a contract. If three such bid quotations are not available,
payments on this Note will be made in the Specified Currency. All currency
exchange costs will be borne by the Holder of this Note by deductions from such
payments.
If the Specified Currency is other than United States dollars, the
Holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its corporate trust office on or prior to the applicable Regular
Record Date or at least 15 calendar days prior to the Maturity Date, as the
case may be. Such written request may be mailed or hand delivered or sent by
cable, telex or other form of facsimile transmission. The Holder of this Note
may elect to receive all or a specified portion of all future payments in the
Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Regular Record Date or at least 15 calendar days prior
to the Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars and the
Holder of this Note shall have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency, but the Specified Currency
is not available due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer, the Issuer will be entitled to
satisfy its obligations to the Holder of this Note by making such payment in
United States dollars on the basis of the Market Exchange Rate (as defined
below) determined by the Exchange Rate Agent on the second Business Day prior
to such payment date or, if such Market Exchange Rate is not then available, on
the basis of the most recently available Market Exchange Rate or as otherwise
specified in the Pricing Supplement applicable to this Note. The "Market
Exchange Rate" for the Specified Currency means the noon dollar buying rate in
The City of New York for cable transfers for the Specified Currency as
certified for customs purposes (or, if not so certified, as
4
<PAGE> 5
otherwise determined) by the Federal Reserve Bank of New York. Any payment made
in United States dollars under such circumstances shall not constitute an Event
of Default (as defined in the Indenture).
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holder of this Note.
The Issuer agrees to indemnify the Holder of this Note against any
loss incurred by such Holder as a result of any judgment or order being given
or made against the Issuer for any amount due hereunder and such judgment or
order requiring payment in a currency (the "Judgment Currency") other than the
Specified Currency, and as a result of any variation between (i) the rate of
exchange at which the Specified Currency amount is converted into the Judgment
Currency for the purpose of such judgment or order, and (ii) the rate of
exchange at which such Holder, on the date of payment of such judgment or
order, is able to purchase the Specified Currency with the amount of the
Judgment Currency actually received by such Holder, as the case may be. The
foregoing indemnity constitutes a separate and independent obligation of the
Issuer and continues in full force and effect notwithstanding any such judgment
or order as aforesaid. The term "rate of exchange" includes any premiums and
costs of exchange payable in connection with the purchase of, or conversion
into, the relevant currency.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified on the face hereof, in an
Addendum hereto, which further provisions shall have the same force and effect
as if set forth on the face hereof.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Provisions" apply to this Note as specified above, this Note
shall be subject to the terms set forth in such Addendum or such
"Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
5
<PAGE> 6
IN WITNESS WHEREOF, National Consumer Cooperative Bank has caused this
Note to be duly executed by one of its duly authorized officers.
NATIONAL CONSUMER COOPERATIVE BANK
By
--------------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By
----------------------------
Authorized Signatory
6
<PAGE> 7
NATIONAL CONSUMER COOPERATIVE BANK
MEDIUM-TERM SUBORDINATED NOTE, SERIES B
(FIXED RATE)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Issuer issued and to be issued under an Indenture, dated
as of January 7, 2000, as amended, modified or supplemented from time to time
(the "Indenture"), between the Issuer and Bank One Trust Company, N.A., as
trustee (the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Issuer, the Trustee and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Note is one of the series of
Securities designated as "Medium-Term Subordinated Notes, Series B" (the
"Notes"). All terms used but not defined in this Note or in an Addendum hereto
shall have the meanings assigned to such terms in the Indenture or on the face
hereof, as the case may be.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof or other
Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless
otherwise specified on the face hereof in accordance with the provisions of the
following two paragraphs, will not be redeemable or repayable prior to the
Maturity Date.
This Note will be subject to redemption at the option of the Issuer on
any date on or after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S. $1,000 or
other integral multiple of an Authorized Denomination (provided that any
remaining principal amount hereof shall be at least U.S. $1,000 or such other
minimum Authorized Denomination), at the Redemption Price (as defined below),
together with unpaid interest accrued thereon to the date fixed for redemption
(the "Redemption Date"), on written notice given to the Holder hereof (in
accordance with the provisions of the Indenture) not more than 60 nor less than
30 calendar days prior to the Redemption Date. The "Redemption Price" shall be
the Initial Redemption Percentage specified on the face hereof (as adjusted by
the Annual Redemption Percentage Reduction, if any, specified on the face
hereof as set forth below) multiplied by the unpaid principal amount of this
Note to be redeemed. The Initial Redemption Percentage shall decline at each
anniversary of the Initial Redemption Date by the Annual Redemption Percentage
Reduction, if any, until the Redemption Price is 100% of unpaid principal
amount to be redeemed. In the event of redemption of this Note in part only, a
new Note of like tenor for the unredeemed portion hereof and otherwise having
the same terms and provisions as this Note shall be issued by the Issuer in the
name of the Holder hereof upon the presentation and surrender hereof.
This Note will be subject to repayment at the option of the Holder
prior to its Stated Maturity Date on any Optional Repayment Date(s), if any,
indicated above. If no Optional
7
<PAGE> 8
Repayment Dates are set forth above, this Note may not be so repaid at the
option of the Holder hereof prior to the Stated Maturity Date. On any Optional
Repayment Date, this Note shall be repayable in whole or in part in an amount
equal to $1,000 or any integral multiple thereof (provided that any remaining
principal amount shall be an Authorized Denomination) at the option of the
Holder hereof at a repayment price equal to 100% of the principal amount to be
repaid, together with interest thereon payable to the date of repayment. For
this Note to be repaid in whole or in part at the option of the Holder hereof,
the Holder must give to the Trustee not less than 30 days' nor more than 60
days' notice. This notice shall consist of either (i) this Note with the form
entitled "Option to Elect Repayment" duly completed, or (ii) a telegram,
facsimile transmission or a letter from a member of a national securities
exchange or of the National Association of Securities Dealers, Inc. or a
commercial bank or trust company in the United States, setting forth the name
of the Holder, the principal amount of this Note, the principal amount of this
Note to be repaid, the certificate number or a description of the tenor and
terms of this Note, a statement that the option to elect repayment is being
exercised thereby and a guarantee that the Note, together with the duly
completed form entitled "Option to Elect Repayment," will be received by the
Trustee not later than the fifth Business Day after the date of telegram,
facsimile transmission or letter; provided, however, that the telegram,
facsimile transmission or letter shall only be effective if this Note and the
form, duly completed, are received by the Trustee by the fifth Business Day.
Exercise of such repayment option by the Holder hereof shall be irrevocable. In
the event of repayment of this Note in part only, a new Note for the unpaid
portion hereof shall be issued in the name of the Holder hereof upon the
surrender hereof..
If this Note is specified on the face hereof to be an Original Issue
Discount Note, the amount payable to the Holder of this Note in the event of
redemption, repayment or acceleration of maturity will be equal to the sum of
(1) the Issue Price specified on the face hereof (increased by any accruals of
the Discount, as defined below) and, in the event of any redemption of this
Note (if applicable), multiplied by the Initial Redemption Percentage (as
adjusted by the Annual Redemption Percentage Reduction, if applicable) and (2)
any unpaid interest accrued thereon to the Redemption Date, Repayment Date or
date of acceleration of maturity, as the case may be. The difference between
the Issue Price and 100% of the principal amount of this Note is referred to
herein as the "Discount".
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause the yield on the Note
to be constant. The constant yield will be calculated using a 30-day month,
360-day year convention, a compounding period that, except for the Initial
Period (as defined below), corresponds to the shortest period between Interest
Payment Dates (with ratable accruals within a compounding period) and an
assumption that the maturity of this Note will not be accelerated. If the
period from the Original Issue Date to the initial Interest Payment Date (the
"Initial Period") is shorter than the compounding period for this Note, a
proportionate amount of the yield for an entire compounding period will be
accrued. If the Initial Period is longer than the compounding period, then such
period will be divided into a regular compounding period and a short period,
with the short period being treated as provided in the preceding sentence.
8
<PAGE> 9
The indebtedness evidenced by this Note is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of payment
to the prior payment in full of the principal of (and premium, if any) and
interest on all Senior Indebtedness as defined in the Indenture, and this Note
is issued subject to such provisions and each Holder of this Note, by accepting
the same, agrees to and shall be bound by such provisions, and authorizes the
Trustee on such Holder's behalf to take such action as may be necessary or
appropriate to effectuate such subordination as provided in the Indenture and
appoints the Trustee as such Holder's attorney-in-fact for such purpose.
If an Event of Default shall occur and be continuing, the principal of
the Notes may, and in certain cases shall, be accelerated in the manner and
with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Securities at any time by the
Issuer and the Trustee with the consent of the Holders of not less than 66 2/3%
of the aggregate principal amount of all Securities at the time outstanding and
affected thereby. The Indenture also contains provisions permitting the Holders
of not less than a majority of the aggregate principal amount of the
outstanding Securities of any series, on behalf of the Holders of all such
Securities, to waive compliance by the Issuer with certain provisions of the
Indenture. Furthermore, provisions of the Indenture permit the Holders of not
less than a majority of the aggregate principal amount of the outstanding
Securities of any series, in certain instances, to waive, on behalf of all of
the Holders of Securities of such series, certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and other Notes issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, the transfer of this Note is registrable in the
Security Register of the Issuer upon surrender of this Note for registration of
transfer at the office or agency of the Issuer in any place where the principal
hereof and any premium or interest hereon are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Security Registrar duly executed by, the Holder hereof or by his
attorney duly authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
9
<PAGE> 10
As provided in the Indenture and subject to certain limitations
therein and herein set forth, this Note is exchangeable for a like aggregate
principal amount of Notes of different authorized denominations but otherwise
having the same terms and conditions, as requested by the Holder hereof
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat
the Holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
10
<PAGE> 11
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN - Custodian
TEN ENT - as tenants by the entireties ACT ------------------
-----------
JT TEN - as joint tenants with right of (Cust) (Minor)
survivorship and not as tenants under Uniform Gifts to Minors
in common Act
----------------------------
(State)
</TABLE>
Additional abbreviations may also be used though
not in the above list.
----------------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
- --------------------------------------------------------------------------------
this Note and all rights thereunder hereby irrevocably constituting and
appointing
- --------------------------------------------------------------------------------
Attorney to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
<TABLE>
<S> <C>
Dated:
----------------------------- -------------------------------------------------------
----------------------------- -------------------------------------------------------
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written upon
the face of this Note in every particular,
without alteration or enlargement or any change
whatsoever.
</TABLE>
11
<PAGE> 12
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Issuer to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at
------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office in the Borough of Manhattan, The City of New York, currently
located at ______________________________________, not more than 60 nor less
than 30 calendar days prior to the Repayment Date, this Note with this "Option
to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S. $1,000 or other
integral multiple of an Authorized Denomination) (provided that any remaining
principal amount shall be at least U.S. $1,000 or such other minimum Authorized
Denomination) which the Holder elects to have repaid and specify the
denomination or denominations (which shall be U.S. $1,000 or such other minimum
Authorized Denomination) of the Notes to be issued to the Holder for the
portion of this Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid).
<TABLE>
<S> <C>
Principal Amount
to be Repaid: $
---------------------- --------------------------------------------
Notice: The signature(s) on this Option to
Dated: Elect Repayment must correspond with the
------------------------------- name(s) as written upon the face of this
Note in every particular, without alteration
or enlargement or any change whatsoever.
</TABLE>
12
<PAGE> 1
EXHIBIT 4.5
[FACE OF NOTE]
THIS NOTE IS NOT GUARANTEED BY THE UNITED STATES AND DOES NOT CONSTITUTE A DEBT
OR OBLIGATION OF THE UNITED STATES OR ANY AGENCY OR INSTRUMENTALITY THEREOF.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. FLR-________ ___________ ________________
NATIONAL CONSUMER COOPERATIVE BANK
MEDIUM-TERM SUBORDINATED NOTE, SERIES B
(FLOATING RATE)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ]LIBOR Reuters
Page:
[ ]LIBOR Telerate
Page:
Designated LIBOR Currency:
Designated CMT Telerate Page:
If Telerate Page 7052:
[ ] Weekly Average
[ ] Monthly Average
Designated CMT Maturity Index:
INDEX MATURITY: INITIAL INTEREST RATE: % INTEREST PAYMENT DATE(S):
SPREAD (PLUS OR MINUS): INITIAL INTEREST RESET REGULAR RECORD DATE(S):
DATE:
1
<PAGE> 2
<TABLE>
<CAPTION>
<S> <C> <C>
SPREAD MULTIPLIER: OPTIONAL REPAYMENT DATE(S): INTEREST RESET DATES:
INITIAL REDEMPTION DATE: INITIAL REDEMPTION PERCENTAGE: ANNUAL REDEMPTION PERCENTAGE REDUCTION:
CALCULATION AGENT: EXCHANGE RATE AGENT: DAY COUNT CONVENTION:
[ ] 30/360 for the period from
to .
[ ] Actual/360 for the period from
to .
[ ] Actual/Actual for the period from
to .
Applicable Interest Rate Basis (if interest is
calculated with reference to two or more Interest Rate
Bases):
MAXIMUM INTEREST RATE: MINIMUM INTEREST RATE:
AUTHORIZED DENOMINATION [ ] CHECK IF ORIGINAL ISSUE
(if other than $1,000 and integral DISCOUNT NOTE
multiples thereof): Issue Price: %
SPECIFIED CURRENCY: ADDENDUM ATTACHED: OTHER/ADDITIONAL PROVISIONS:
[ ] United States Dollars [ ] Yes [ ] Yes
[ ] Other: [ ] No [ ] No
</TABLE>
2
<PAGE> 3
National Consumer Cooperative Bank, a corporation duly organized and existing
under the laws of the United States (the "Issuer", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to CEDE & Co., or registered assigns, the
Principal Amount of , on the Stated Maturity Date specified above (or any
Redemption Date or Repayment Date, each as defined on the reverse hereof, or any
earlier date of acceleration of maturity) (each such date being hereinafter
referred to as the "Maturity Date" with respect to the principal repayable on
such date) and to pay interest thereon (and on any overdue principal, premium
and/or interest to the extent legally enforceable) at a rate per annum equal to
the Initial Interest Rate specified above until the Initial Interest Reset Date
specified above and thereafter at a rate determined in accordance with the
provisions specified above and on the reverse hereof or in an Addendum hereto
with respect to one or more Interest Rate Bases specified above until the
principal hereof is paid or duly made available for payment. The Issuer will pay
interest in arrears on each Interest Payment Date, if any, specified above
(each, an "Interest Payment Date"), commencing with the first Interest Payment
Date next succeeding the Original Issue Date specified above, and on the
Maturity Date; provided, however, that if the Original Issue Date occurs between
a Regular Record Date (as defined below) and the next succeeding Interest
Payment Date, interest payments will commence on the second Interest Payment
Date next succeeding the Original Issue Date to the registered holder (the
"Holder") of this Note on the Regular Record Date with respect to such second
Interest Payment Date.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes, as defined
on the reverse hereof) is registered at the close of business on the fifteenth
calendar day (whether or not a Business Day, as defined below) immediately
preceding such Interest Payment Date (unless otherwise specified on the face
hereof) (the "Regular Record Date"); provided, however, that interest payable on
the Maturity Date will be payable to the person to whom the principal hereof and
premium, if any, hereon shall be payable. Any such interest not so punctually
paid or duly provided for on any Interest Payment Date other than the Maturity
Date ("Defaulted Interest") shall forthwith cease to be payable to the Holder on
the close of business on any Regular Record Date and, instead, shall be paid to
the person in whose name this Note is registered at the close of business on a
special record date (the "Special Record Date") for the payment of such
Defaulted Interest to be fixed by the Trustee hereinafter referred to, notice
whereof shall be given to the Holder of this Note by the Trustee not less than
10 calendar days prior to such Special Record Date or may be paid at any time in
any other lawful manner, all as more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, upon delivery of a duly completed election form as
contemplated on the reverse hereof) at the office or agency maintained by the
Issuer for that purpose in the Borough of Manhattan, The City of New York,
currently the office of Bank One Trust Company, N.A. (the "Trustee"), located at
14 Wall Street, 8th Floor, New York, New York 10005, or at such other paying
agency in the Borough of Manhattan, The City of New York, as the Issuer may
determine; provided, however, that if the Specified Currency specified above is
other than United States dollars and such payment is to be made in the Specified
Currency in accordance with the provisions set forth below, such payment
3
<PAGE> 4
will be made by wire transfer of immediately available funds to an account with
a bank designated by the Holder hereof at least 15 calendar days prior to the
Maturity Date, provided that such bank has appropriate facilities therefor and
that this Note (and, if applicable, a duly completed repayment election form) is
presented and surrendered at the aforementioned office or agency maintained by
the Issuer in time for the Trustee to make such payment in such funds in
accordance with its normal procedures. Payment of interest due on any Interest
Payment Date other than the Maturity Date will be made at the aforementioned
office or agency maintained by the Issuer or, at the option of the Issuer, by
check mailed to the address of the person entitled thereto as such address shall
appear in the Security Register maintained by the Trustee; provided, however,
that a Holder of U.S.$10,000,000 (or, if the Specified Currency is other than
United States dollars, the equivalent thereof in the Specified Currency) or more
in aggregate principal amount of Notes (whether having identical or different
terms and provisions) will be entitled to receive interest payments on such
Interest Payment Date by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Trustee not less than 15 calendar days prior to such Interest Payment Date. Any
such wire transfer instructions received by the Trustee shall remain in effect
until revoked by such Holder.
If any Interest Payment Date other than the Maturity Date falls on a
day that is not a Business Day, the required payment of interest shall be made
on the next succeeding Business Day, except that if LIBOR is an applicable
Interest Rate Basis and such Business Day falls in the next succeeding calendar
month, such Interest Payment Date shall be the immediately preceding Business
Day. If the Maturity Date falls on a day that is not a Business Day, the payment
of principal, premium, if any, and interest, shall be made on the next
succeeding Business Day, with the same force and effect as if made on the date
such payment was due, and no interest shall accrue from and after the Maturity
Date to the date of such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day other than a Saturday,
Sunday or other day on which banking institutions in The City of New York are
authorized or obligated by law, regulation or executive order to close;
provided, however, that if the Specified Currency is other than United States
dollars, such day is also a Business Day in the Principal Financial Center (as
defined below) of the country issuing the Specified Currency (or, if the
Specified Currency is Euro, such day is also a day on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open);
provided, further, that if LIBOR is an applicable Interest Rate Basis, such day
is also a London Business Day (as defined below). "London Business Day" means a
day on which dealings in deposits in U.S. dollars are transacted in the London
interbank market. "Principal Financial Center" means the capital city of the
country issuing the Specified Currency except that with respect to United States
dollars, Australian dollars, Deutsche marks, Dutch guilders, Italian lire and
Swiss francs, the "Principal Financial Center" shall be The City of New York,
Sydney (and, solely with respect to the Specified Currency, Melbourne),
Frankfurt, Amsterdam, Milan, London and Zurich, respectively.
The Issuer is obligated to make payment of principal, premium, if any,
and interest in respect of this Note in the Specified Currency or, (i) if such
Specified Currency (other than Euro) is not at the time of such payment legal
tender for the payment of public and private debts, in such other coin or
currency of the country which issued the Specified Currency as at the time of
such payment is legal tender for the payment of such debts or, (ii) if such
currency is Euro, in such other coin or currency which at the time of payment is
then legal tender in the member states of the European Union that have adopted
the single currency in accordance with the Treaty establishing the European
Community, as amended by the Treaty on European Union. If the
4
<PAGE> 5
Specified Currency is other than United States dollars, except as otherwise
provided below, any such amounts so payable by the Issuer will be converted by
the Exchange Rate Agent specified above into United States dollars for payment
to the Holder of this Note.
If the Specified Currency is other than United States dollars, the
Holder of this Note may elect to receive any amount payable hereunder in such
Specified Currency. If the Holder of this Note shall not have duly made an
election to receive all or a specified portion of any payment of principal,
premium, if any, and/or interest in respect of this Note in the Specified
Currency, any United States dollar amount to be received by the Holder of this
Note will be based on the highest bid quotation in The City of New York received
by the Exchange Rate Agent at approximately 11:00 A.M., New York City time, on
the second Business Day preceding the applicable payment date from three
recognized foreign exchange dealers (one of whom may be the Exchange Rate Agent
or one of the Agents) selected by the Exchange Rate Agent and approved by the
Issuer for the purchase by the quoting dealer of the Specified Currency for
United States dollars for settlement on such payment date in the aggregate
amount of the Specified Currency payable to all Holders of Notes scheduled to
receive United States dollar payments and at which the applicable dealer commits
to execute a contract. If three such bid quotations are not available, payments
on this Note will be made in the Specified Currency. All currency exchange costs
will be borne by the Holder of this Note by deductions from such payments.
If the Specified Currency is other than United States dollars, the
Holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its corporate trust office in The City of New York on or prior to
the applicable Record Date or at least 15 calendar days prior to the Maturity
Date, as the case may be. Such written request may be mailed or hand delivered
or sent by cable, telex or other form of facsimile transmission. The Holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the Holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency, but the
Specified Currency is not available due to the imposition of exchange controls
or other circumstances beyond the control of the Issuer, the Issuer will be
entitled to satisfy its obligations to the Holder of this Note by making such
payment in United States dollars on the basis of the Market Exchange Rate (as
defined below) determined by the Exchange Rate Agent on the second Business Day
prior to such payment date or, if such Market Exchange Rate is not then
available, on the basis of the most recently available Market Exchange Rate. The
"Market Exchange Rate" for the Specified Currency means the noon dollar buying
rate in The City of New York for cable transfers for the Specified Currency as
certified for customs purposes (or, if not so certified, as otherwise
determined) by the Federal Reserve Bank of New York. Any payment made in United
States dollars under such circumstances shall not constitute an Event of Default
(as defined in the Indenture).
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding
5
<PAGE> 6
on the Holder of this Note.
The Issuer agrees to indemnify the Holder of any Note against any loss
incurred by such Holder as a result of any judgment or order being given or made
against the Issuer for any amount due hereunder and such judgment or order
requiring payment in a currency (the "Judgment Currency") other than the
Specified Currency, and as a result of any variation between (i) the rate of
exchange at which the Specified Currency amount is converted into the Judgment
Currency for the purpose of such judgment or order, and (ii) the rate of
exchange at which such Holder, on the date of payment of such judgment or order,
is able to purchase the Specified Currency with the amount of the Judgment
Currency actually received by such Holder, as the case may be. The foregoing
indemnity constitutes a separate and independent obligation of the Issuer and
continues in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" includes any premiums and costs of
exchange payable in connection with the purchase of, or conversion into, the
relevant currency.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified on the face hereof, in an
Addendum hereto, which further provisions shall have the same force and effect
as if set forth on the face hereof.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Provisions" apply to this Note as specified above, this Note
shall be subject to the terms set forth in such Addendum or such
"Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
6
<PAGE> 7
IN WITNESS WHEREOF, National Consumer Cooperative Bank has caused this
Note to be duly executed by one of its duly authorized officers.
NATIONAL CONSUMER COOPERATIVE BANK
By ________________________________
Name:
Title:
Dated:___________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of
the series designated therein referred
to in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By _____________________________________
Authorized Signatory
7
<PAGE> 8
NATIONAL CONSUMER COOPERATIVE BANK
MEDIUM-TERM SUBORDINATED NOTE, SERIES B
(FLOATING RATE)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Issuer issued and to be issued under an Indenture, dated as
of January 7, 2000, as amended, modified or supplemented from time to time (the
"Indenture"), between the Issuer and Bank One Trust Company, N.A., as trustee
(the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Issuer, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Securities
designated as "Medium-Term Subordinated Notes, Series B" (the "Notes"). All
terms used but not defined in this Note or in an Addendum hereto shall have the
meanings assigned to such terms in the Indenture or on the face hereof, as the
case may be.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S.$1,000 and integral multiples of U.S.$1,000 or
other Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Maturity Date.
This Note will be subject to redemption at the option of the Issuer on
any date on or after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S. $1,000 or
other integral multiple of an Authorized Denomination (provided that any
remaining principal amount hereof shall be at least U.S. $1,000 or such other
minimum Authorized Denomination), at the Redemption Price (as defined below),
together with unpaid interest accrued thereon to the date fixed for redemption
(the "Redemption Date"), on written notice given to the Holder hereof (in
accordance with the provisions of the Indenture) not more than 60 nor less than
30 calendar days prior to the Redemption Date. The "Redemption Price" shall be
the Initial Redemption Percentage specified on the face hereof (as adjusted by
the Annual Redemption Percentage Reduction, if any, specified on the face hereof
as set forth below) multiplied by the unpaid principal amount of this Note to be
redeemed. The Initial Redemption Percentage shall decline at each anniversary of
the Initial Redemption Date by the Annual Redemption Percentage Reduction, if
any, until the Redemption Price is 100% of unpaid principal amount to be
redeemed. In the event of redemption of this Note in part only, a new Note of
like tenor for the unredeemed portion hereof and otherwise having the same terms
and provisions as this Note shall be issued by the Issuer in the name of the
Holder hereof upon the presentation and surrender hereof.
This Note will be subject to repayment at the option of the Holder
prior to its Stated Maturity Date on any Optional Repayment Date(s), if any,
indicated above. If no Optional Repayment Dates are set forth above, this Note
may not be so repaid at the option of the Holder hereof prior to the Stated
Maturity Date. On any Optional Repayment Date, this Note shall be repayable in
whole or in part in an amount equal to $1,000 or any integral multiple thereof
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(provided that any remaining principal amount shall be an Authorized
Denomination) at the option of the Holder hereof at a repayment price equal to
100% of the principal amount to be repaid, together with interest thereon
payable to the date of repayment. For this Note to be repaid in whole or in part
at the option of the Holder hereof, the Holder must give to the Trustee not less
than 30 days' nor more than 60 days' notice. This notice shall consist of either
(i) this Note with the form entitled "Option to Elect Repayment" duly completed,
or (ii) a telegram, facsimile transmission or a letter from a member of a
national securities exchange or of the National Association of Securities
Dealers, Inc. or a commercial bank or trust company in the United States,
setting forth the name of the Holder, the principal amount of this Note, the
principal amount of this Note to be repaid, the certificate number or a
description of the tenor and terms of this Note, a statement that the option to
elect repayment is being exercised thereby and a guarantee that the Note,
together with the duly completed form entitled "Option to Elect Repayment," will
be received by the Trustee not later than the fifth Business Day after the date
of telegram, facsimile transmission or letter; provided, however, that the
telegram, facsimile transmission or letter shall only be effective if this Note
and the form, duly completed, are received by the Trustee by the fifth Business
Day. Exercise of such repayment option by the Holder hereof shall be
irrevocable. In the event of repayment of this Note in part only, a new Note for
the unpaid portion hereof shall be issued in the name of the Holder hereof upon
the surrender hereof.
If this Note is specified on the face hereof to be an Original Issue
Discount Note, the amount payable to the Holder of this Note in the event of
redemption, repayment or acceleration of maturity of this Note will be equal to
the sum of (1) the Issue Price specified on the face hereof (increased by any
accruals of the Discount, as defined below) and, in the event of any redemption
of this Note (if applicable), multiplied by the Initial Redemption Percentage
(as adjusted by the Annual Redemption Percentage Reduction, if applicable) and
(2) any unpaid interest accrued thereon to the Redemption Date, Repayment Date
or date of acceleration of maturity, as the case may be. The difference between
the Issue Price and 100% of the principal amount of this Note is referred to
herein as the "Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause an assumed yield on the
Note to be constant. The assumed constant yield will be calculated using a
30-day month, 360-day year convention, a compounding period that, except for the
Initial Period (as defined below), corresponds to the shortest period between
Interest Payment Dates (with ratable accruals within a compounding period), a
coupon rate equal to the initial interest rate applicable to this Note and an
assumption that the maturity of this Note will not be accelerated. If the period
from the Original Issue Date to the initial Interest Payment Date (the "Initial
Period") is shorter than the compounding period for this Note, a proportionate
amount of the yield for an entire compounding period will be accrued. If the
Initial Period is longer than the compounding period, then such period will be
divided into a regular compounding period and a short period, with the short
period being treated as provided in the preceding sentence.
Unless the face hereof specifies that either "Other/Additional
Provisions" or an Addendum hereto applies, in each case, relating to a different
interest rate formula, this Note shall be designated as a "Floating Rate Note"
and, except as set forth below or specified on the face hereof or in an Addendum
hereto, shall bear interest at the rate determined by reference to the
applicable Interest Rate Basis or Bases (a) plus or minus the Spread, if any,
and/or (b) multiplied by the Spread Multiplier, if any, in each case as
specified on the face hereof. Commencing on the Initial Interest Reset Date, the
rate at which interest on this Note shall be
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payable shall be reset as of each Interest Reset Date specified on the face
hereof; provided, however, that the interest rate in effect for the period, if
any, from the Original Issue Date to the Initial Interest Reset Date shall be
the Initial Interest Rate.
The interest rate borne by this Note will be determined as follows:
Except as set forth above or specified on the face hereof or in an
Addendum hereto, the interest rate in effect on each day shall be (i) if such
day is an Interest Reset Date, the interest rate determined as of the Interest
Determination Date (as defined below) immediately preceding such Interest Reset
Date or (ii) if such day is not an Interest Reset Date, the interest rate
determined as of the Interest Determination Date immediately preceding the most
recent Interest Reset Date. If any Interest Reset Date would otherwise be a day
that is not a Business Day, such Interest Reset Date shall be postponed to the
next succeeding Business Day, except that if LIBOR is an applicable Interest
Rate Basis and the next succeeding London Business Day falls in the next
succeeding calendar month, such Interest Reset Date shall be the immediately
preceding London Business Day. In addition, if the Treasury Rate is an
applicable Interest Rate Basis and the Interest Determination Date would
otherwise fall on an Interest Reset Date, then such Interest Reset Date will be
postponed to the next succeeding Business Day.
The interest rate applicable to the period for which interest is being
calculated commencing on the related Interest Reset Date will be determined by
the Calculation Agent as of the applicable Interest Determination Date and will
be calculated by the Calculation Agent on or prior to the Calculation Date (as
defined below), except with respect to LIBOR, which will be calculated on such
Interest Determination Date. The "Interest Determination Date" with respect to
the CD Rate, the CMT Rate, the Commercial Paper Rate, the Federal Funds Rate and
the Prime Rate will be the second Business Day immediately preceding the
applicable Interest Reset Date; and the "Interest Determination Date" with
respect to LIBOR shall be the second London Business Day immediately preceding
the applicable Interest Reset Date, unless the Designated LIBOR Currency is
British pounds sterling, in which case the "Interest Determination Date" will be
the applicable Interest Reset Date. The "Interest Determination Date" with
respect to the Treasury Rate shall be the day in the week in which the
applicable Interest Reset Date falls on which day Treasury Bills (as defined
below) are normally auctioned (Treasury Bills are normally sold at an auction
held on Monday of each week, unless such Monday is a legal holiday, in which
case the auction is normally held on the immediately succeeding Tuesday,
although such auction may be held on the preceding Friday); provided, however,
that if an auction is held on the Friday of the week preceding the applicable
Interest Reset Date, the "Interest Determination Date" shall be such preceding
Friday. If the interest rate of this Note is determined with reference to two or
more Interest Rate Bases specified on the face hereof, the "Interest
Determination Date" pertaining to this Note shall be the most recent Business
Day which is at least two Business Days prior to the applicable Interest Reset
Date on which each Interest Rate Basis is determinable. Each Interest Rate Basis
shall be determined as of such date, and the applicable interest rate shall take
effect on the related Interest Reset Date.
Unless otherwise specified on the face hereof or in an Addendum hereto,
the rate with respect to each Interest Rate Basis will be determined in
accordance with the applicable provisions below.
CD Rate. If an Interest Rate Basis for this Note is specified on the
face hereof as the CD Rate, the CD Rate shall be determined as of the applicable
Interest Determination Date (a "CD Rate Interest Determination Date") as the
rate on such date for negotiable United States dollar certificates of deposit
having the Index Maturity specified on the face hereof as published in
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H.15(519) (as defined below) under the heading "CDs (secondary market)", or, if
not published by 3:00 P.M., New York City time, on the related Calculation Date,
the rate on such CD Rate Interest Determination Date for negotiable United
States dollar certificates of deposit of the Index Maturity as in H.15 Daily
Update (as hereinafter defined), or such other recognized electronic source used
for the purpose of displaying such rate, under the caption "CDs (secondary
market)". If such rate is not yet published in H.15(519), H.15 Daily Update or
another recognized electronic source by 3:00 P.M., New York City time, on the
related Calculation Date, then the CD Rate on such CD Rate Interest
Determination Date will be calculated by the Calculation Agent specified on the
face hereof and will be the arithmetic mean of the secondary market offered
rates as of 10:00 A.M., New York City time, on such CD Rate Interest
Determination Date, of three leading nonbank dealers in negotiable United States
dollar certificates of deposit in The City of New York selected by the
Calculation Agent (which may include one or more of the Agents or their
affiliates) for negotiable United States dollar certificates of deposit of major
United States money market banks for negotiable United States dollar
certificates of deposit with a remaining maturity closest to the Index Maturity
in an amount that is representative for a single transaction in that market at
that time; provided, however, that if the dealers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the CD Rate determined as
of such CD Rate Interest Determination Date will be the CD Rate in effect on
such CD Rate Interest Determination Date.
"H.15(519)" means the weekly statistical release designated as such, or
any successor publication, published by the Board of Governors of the Federal
Reserve System.
"H.15 Daily Update" means the daily update of H.15(519), available
through the world-wide-web site of the Board of Governors of the Federal Reserve
System at http://www.bog.frb.fed.us/releases/h15/update, or any successor site
or publication.
CMT Rate. If an Interest Rate Basis for this Note is specified on the
face hereof as the CMT Rate, the CMT Rate shall be determined as of the
applicable Interest Determination Date (a "CMT Rate Interest Determination
Date") as the rate displayed on the Designated CMT Telerate Page (as defined
below) under the caption "...Treasury Constant Maturities...Federal Reserve
Board Release H.15...Mondays Approximately 3:45 P.M.", under the column for the
Designated CMT Maturity Index (as defined below) for (i) if the Designated CMT
Telerate Page is 7051, the rate on such CMT Rate Interest Determination Date and
(ii) if the Designated CMT Telerate Page is 7052, the weekly or monthly average,
as specified on the face hereof, for the week or month, as applicable, ended
immediately preceding the week or month, as applicable, in which the related CMT
Rate Interest Determination Date falls. If such rate is no longer displayed on
the relevant page or is not so displayed by 3:00 P.M., New York City time, on
the related Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in H.15(519). If such rate is no
longer published or is not so published by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate on such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in
H.15(519). If such information is not so provided by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate on the CMT Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean
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of the secondary market offered rates as of approximately 3:30 P.M., New York
City time, on such CMT Rate Interest Determination Date reported, according to
their written records, by three leading primary United States government
securities dealers (each, a "Reference Dealer") in The City of New York (which
may include one or more of the Agents or their affiliates) selected by the
Calculation Agent (from five such Reference Dealers selected by the Calculation
Agent and eliminating the highest quotation (or, in the event of equality, one
of the highest) and the lowest quotation (or, in the event of equality, one of
the lowest)), for the most recently issued direct noncallable fixed rate
obligations of the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent is unable to obtain three such Treasury Note quotations, the
CMT Rate on such CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market offered rates as of approximately 3:30 P.M., New York
City time, on such CMT Rate Interest Determination Date of three Reference
Dealers in The City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least U.S.$100 million. If three or four (and not
five) of such Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of the offered rates obtained and
neither the highest nor the lowest of such quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers selected by the Calculation
Agent are quoting as mentioned herein, the CMT Rate determined as of such CMT
Rate Interest Determination Date will be the CMT Rate in effect on such CMT Rate
Interest Determination Date. If two Treasury Notes with an original maturity as
described in the second preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the Calculation Agent will
obtain quotations for the Treasury Note with the shorter remaining term to
maturity.
"Designated CMT Telerate Page" means the display on Bridge Telerate,
Inc. (or any successor service) on the page specified on the face hereof (or any
other page as may replace such page on such service for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519) or, if no such
page is specified on the face hereof, page 7052.
"Designated CMT Maturity Index" means the original period to maturity
of the United States Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified on the face hereof with respect to which the CMT Rate will be
calculated or, if no such maturity is specified on the face hereof, 2 years.
Commercial Paper Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Commercial Paper Rate, the Commercial Paper
Rate shall be determined as of the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date") as the Money Market Yield
(as defined below) on such date of the rate for commercial paper having the
Index Maturity as published in H.15(519) under the caption "Commercial
Paper-Nonfinancial" or, if not so published by 3:00 P.M., New York City time, on
the related Calculation Date, the rate on such Commercial Paper Rate Interest
Determination Date for commercial paper having the Index Maturity as published
in H.15 Daily Update, or such other recognized electronic source used for the
purpose of displaying such rate, under the caption "Commercial
Paper-Nonfinancial". If such rate is not yet published in H.15(519), H.15 Daily
Update or another recognized electronic source by 3:00 P.M., New York City time,
on such
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Calculation Date, then the Commercial Paper Rate on such Commercial Paper Rate
Interest Determination Date will be calculated by the Calculation Agent and
shall be the Money Market Yield of the arithmetic mean of the offered rates at
approximately 11:00 A.M., New York City time, on such Commercial Paper Rate
Interest Determination Date of three leading dealers of United States dollar
commercial paper in The City of New York selected by the Calculation Agent
(which may include one or more of the Agents or their affiliates) for commercial
paper having the Index Maturity placed for industrial issuers whose bond rating
is "Aa", or the equivalent, from a nationally recognized statistical rating
organization; provided, however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Commercial
Paper Rate determined as of such Commercial Paper Rate Interest Determination
Date will be the Commercial Paper Rate in effect on such Commercial Paper Rate
Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D X 360 X 100
------------------
360 - (D X M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the applicable interest period for which interest is being
calculated.
Federal Funds Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Federal Funds Rate, the Federal Funds Rate
shall be determined as of the applicable Interest Determination Date (a "Federal
Funds Rate Interest Determination Date") as the rate on such date for United
States dollar federal funds as published in H.15(519) under the heading "Federal
Funds (Effective)", as such rate is displayed on Bridge Telerate, Inc. (or any
successor service) on page 120 (or any other page as may replace such page on
such service) ("Telerate Page 120"), or, if such rate does not appear on
Telerate page 120 or is not so published by 3:00 P.M., New York City time, on
the Calculation Date, the rate on such Federal Funds Rate Interest Determination
Date for United States dollar federal funds as published in H.15 Daily Update,
or such other recognized electronic source used for the purpose of displaying
such rate, under the caption "Federal Funds (Effective)." If such rate does not
appear on Telerate Page 120 or is not yet published in H.15(519), H.15 Daily
Update or another recognized electronic source by 3:00 P.M., New York City time,
on the related Calculation Date, then the Federal Funds Rate on such Federal
Funds Interest Determination Date shall be calculated by the Calculation Agent
and will be the arithmetic mean of the rates for the last transaction in
overnight United States dollar federal funds arranged by three leading brokers
of United States dollar federal funds transactions in The City of New York
(which may include one or more of the Agents or their affiliates) selected by
the Calculation Agent, prior to 9:00 A.M., New York City time, on such Federal
Funds Rate Interest Determination Date; provided, however, that if the brokers
so selected by the Calculation Agent are not quoting as mentioned in this
sentence, the Federal Funds Rate determined as of such Federal Funds Rate
Interest Determination Date will be the Federal Funds Rate in effect on such
Federal Funds Rate Interest Determination Date.
LIBOR. If an Interest Rate Basis for this Note is specified on the face
hereof as LIBOR, LIBOR shall be determined by the Calculation Agent as of the
applicable Interest Determination Date (a "LIBOR Interest Determination Date")
in accordance with the following provisions:
(i) (a) if "LIBOR Telerate" is specified on the face hereof or if
neither "LIBOR Reuters"
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nor "LIBOR Telerate" is specified on the face hereof as the method for
calculating LIBOR, the rate for deposits in the Designated LIBOR Currency having
the Index Maturity specified on the face hereof, commencing on such Interest
Reset Date, that appears on the Designated LIBOR Page (as defined below) as of
11:00 A.M., London time, on such LIBOR Interest Determination Date; or (b) if
"LIBOR Reuters" is specified on the face hereof, the arithmetic mean of the
offered rates (unless the Designated LIBOR Page (as defined below) by its terms
provides only for a single rate, in which case such single rate will be used)
for deposits in the Designated LIBOR Currency having the Index Maturity,
commencing on the applicable Interest Reset Date, that appear (or, if only a
single rate is required as aforesaid, appears) on the Designated LIBOR Page as
of 11:00 A.M., London time, on such LIBOR Interest Determination Date. If fewer
than two such offered rates so appear, or if no such rate so appears, as
applicable, LIBOR on such LIBOR Interest Determination Date shall be determined
in accordance with the provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which fewer
than two offered rates appear, or no rate appears, as the case may be, on the
Designated LIBOR Page as specified in clause (i) above, the Calculation Agent
shall request the principal London office of each of four major reference banks
(which may include the Agents or their affiliates) in the London interbank
market, as selected by the Calculation Agent, to provide the Calculation Agent
with its offered quotation for deposits in the Designated LIBOR Currency for the
period of the Index Maturity, commencing on the applicable Interest Reset Date,
to prime banks in the London interbank market at approximately 11:00 A.M.,
London time, on such LIBOR Interest Determination Date and in a principal amount
that is representative for a single transaction in the Designated LIBOR Currency
in such market at such time. If at least two such quotations are so provided,
then LIBOR on such LIBOR Interest Determination Date will be the arithmetic mean
of such quotations. If fewer than two such quotations are so provided, then
LIBOR on such LIBOR Interest Determination Date will be the arithmetic mean of
the rates quoted at approximately 11:00 A.M., in the applicable Principal
Financial Center, on such LIBOR Interest Determination Date by three major banks
which may include affiliates of the Agent in such Principal Financial Center
selected by the Calculation Agent for loans in the Designated LIBOR Currency to
leading European banks, having the Index Maturity and in a principal amount that
is representative for a single transaction in the Designated LIBOR Currency in
such market at such time; provided, however, that if the banks so selected by
the Calculation Agent are not quoting as mentioned in this sentence, LIBOR
determined as of such LIBOR Interest Determination Date shall be LIBOR in effect
on such LIBOR Interest Determination Date.
"Designated LIBOR Currency" means the currency specified on the face
hereof as to which LIBOR shall be calculated or, if no such currency is
specified on the face hereof, United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on
the face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page specified on the face hereof (or any other page
as may replace such page on such service) for the purpose of displaying the
London interbank rates of major banks for the Designated LIBOR Currency, or (b)
if "LIBOR Telerate" is specified on the face hereof or neither "LIBOR Reuters"
nor "LIBOR Telerate" is specified on the face hereof as the method for
calculating LIBOR, the display on Bridge Telerate, Inc. (or any successor
service) on the page specified on the face hereof (or any other page as may
replace such page on such service) for the purpose of displaying the London
interbank rates of major banks for the Designated LIBOR Currency.
Prime Rate. If an Interest Rate Basis for this Note is specified on the
face hereto as the
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Prime Rate, the Prime Rate shall be determined as of the applicable Interest
Determination Date (a "Prime Rate Interest Determination Date") as the rate on
such date as such rate is published in H.15(519) under the caption "Bank Prime
Loan" or, if not published by 3:00 P.M., New York City time, on the related
Calculation Date, the rate on such Prime Rate Interest Determination Date as
published in H.15 Daily Update, or such other recognized electronic source used
for the purpose of displaying such rate, under the caption "Bank Prime Loan." If
such rate is not yet published in H.15(519), H.15 Daily Update or another
recognized electronic source by 3:00 P.M., New York City time, on the related
Calculation Date, the Prime Rate shall be the arithmetic mean of the rates of
interest publicly announced by each bank that appears on the Reuters Screen US
PRIME 1 Page (as defined below) as such bank's prime rate or base lending rate
as of 11:00 A.M., New York City time, on such Prime Rate Interest Determination
Date. If fewer than four such rates so appear on the Reuters Screen US PRIME 1
Page for such Prime Rate Interest Determination Date, then the Prime Rate shall
be the arithmetic mean of the prime rates or base lending quoted on the basis of
the actual number of days in the year divided by a 360-day year as of the close
of business on such Prime Rate Interest Determination Date by three major banks
in The City of New York selected by the Calculation Agent (which may include the
Agents or their affiliates); provided, however, that if the banks or trust
companies so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Prime Rate determined as of such Prime Rate Interest
Determination Date will be the Prime Rate in effect on such Prime Rate Interest
Determination Date.
"Reuters Screen US PRIME 1 Page" means the display on the Reuter
Monitor Money Rates Service (or any successor service) on the "US PRIME 1" Page
(or such other page as may replace the US PRIME 1 Page on such service) for the
purpose of displaying prime rates or base lending rates of major United States
banks.
Treasury Rate. If an Interest Rate Basis for this Note is specified on
the face hereof as the Treasury Rate, the Treasury Rate shall be determined as
of the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate from the auction held on such Treasury Rate
Interest Determination Date (the "Auction") of direct obligations of the United
States ("Treasury Bills") having the Index Maturity under the caption
"INVESTMENT RATE" on the display on Bridge Telerate, Inc. (or any successor
service) on page 56 (or any other page as may replace such page on such service)
("Telerate Page 56") or page 57 (or any other page as may replace such page on
such service) ("Telerate Page 57") or, if not so published by 3:00 P.M., New
York City time, on the related Calculation Date, the Bond Equivalent Yield (as
hereinafter defined) of the rate for such Treasury Bills as published in H.15
Daily Update, or such other recognized electronic source used for the purpose of
displaying such rate, under the caption "U.S. Government Securities/Treasury
Bills/Auction High" or, if not so published by 3:00 P.M., New York City time, on
the related Calculation Date, the auction rate of such Treasury Bills (expressed
as a bond equivalent yield on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) as otherwise announced by the United
States Department of the Treasury. In the event that the results of the Auction
of Treasury Bills having the Index Maturity are not so published by 3:00 P.M.,
New York City time, on such Calculation Date, or if no such Auction is held,
then the Treasury Rate will be the rate (expressed as a bond equivalent yield on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) on such Treasury Rate Interest Determination Date of Treasury Bills
having the Index Maturity as published in H.15(519) under the caption "U.S.
Government Securities/Treasury Bills/Secondary
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Market" or, if not yet published by 3:00 P.M., New York City time, on the
related Calculation Date, the rate on such Treasury Rate Interest Determination
Date of such Treasury Bills as published in H.15 Daily Update, or such other
recognized electronic source used for the purpose of displaying such rate, under
the caption "U.S. Government Securities/Treasury Bills/Secondary Market." If
such rate is not yet published in H.15(519), H.15 Daily Update or another
recognized electronic source, then the Treasury Rate shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent yield on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 P.M., New York City time, on such Treasury Rate
Interest Determination Date, of three primary United States government
securities dealers (which may include the Agents or their affiliates) selected
by the Calculation Agent, for the issue of Treasury Bills with a remaining
maturity closest to the Index Maturity; provided, however, that if the dealers
so selected by the Calculation Agent are not quoting as mentioned in this
sentence, the Treasury Rate determined as of such Treasury Rate Interest
Determination Date will be the Treasury Rate in effect on such Treasury Rate
Interest Determination Date.
"Bond Equivalent Yield" means a yield calculated in accordance with the
following formula and expressed as a percentage:
Bond Equivalent Yield = D - N - 100
--------------------
360 - (D - M)
where "D" refers to the applicable per annum rate for Treasury Bills
quoted on a bank discount basis, "N" refers to 365 or 366, as the case may be,
and "M" refers to the actual number of days in the interest period for which
interest is being calculated.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law of
general application.
The "Calculation Date", if applicable, pertaining to any Interest
Determination Date shall be the earlier of (i) the tenth calendar day after such
Interest Determination Date or, if such day is not a Business Day, the next
succeeding Business Day or (ii) the Business Day immediately preceding the
applicable Interest Payment Date or the Maturity Date, as the case may be. At
the request of the Holder hereof, the Calculation Agent will provide to the
Holder hereof the interest rate hereon then in effect and, if determined, the
interest rate that will become effective as a result of a determination made for
the next succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by multiplying
the principal amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the applicable Interest Period. Unless otherwise specified as the Day Count
Convention on the face hereof, the interest factor for each such date shall be
computed by dividing the interest rate applicable to such day by 360 if the CD
Rate, the Commercial Paper Rate, the Federal Funds Rate, LIBOR or the Prime Rate
is an applicable Interest Rate Basis or by the actual number of days in the year
if the CMT Rate or the Treasury Rate is an applicable Interest Rate Basis.
Unless otherwise specified as the Day Count Convention on the face hereof, the
interest factor for this Note, if the interest rate is calculated with reference
to two or more Interest Rate Bases, shall be calculated in each period in the
same manner as if only the Applicable Interest Rate Basis specified on the face
hereof applied.
All percentages resulting from any calculation on this Note shall be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards, and all amounts used in or
resulting from such calculation on this Note shall be rounded, in the case of
United States dollars, to the nearest cent or, in the case of a
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<PAGE> 17
Specified Currency other than United States dollars, to the nearest unit (with
one-half cent or unit being rounded upwards).
The indebtedness evidenced by this Note is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full of the principal of (and premium, if any) and interest
on all Senior Indebtedness as defined in the Indenture, and this Note is issued
subject to such provisions and each Holder of this Note, by accepting the same,
agrees to and shall be bound by such provisions, and authorizes the Trustee on
such Holder's behalf to take such action as may be necessary or appropriate to
effectuate such subordination as provided in the Indenture and appoints the
Trustee as such Holder's attorney-in-fact for such purpose.
If an Event of Default shall occur and be continuing, the principal of
the Notes may, and in certain cases shall, be accelerated in the manner and with
the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Securities at any time by the Issuer
and the Trustee with the consent of the Holders of not less than 66-2/3% of the
aggregate principal amount of all Securities at the time outstanding and
affected thereby. The Indenture also contains provisions permitting the Holders
of not less than a majority of the aggregate principal amount of the outstanding
Securities of any series, on behalf of the Holders of all such Securities, to
waive compliance by the Issuer with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the Holders of not less than a
majority of the aggregate principal amount of the outstanding Securities of any
series, in certain instances, to waive, on behalf of all of the Holders of
Securities of such series, certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and other Notes issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Issuer upon surrender of this Note for registration of transfer
at the office or agency of the Issuer in any place where the principal hereof
and any premium or interest hereon are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the
Security Registrar duly executed by, the Holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different
17
<PAGE> 18
authorized denominations but otherwise having the same terms and conditions, as
requested by the Holder hereof surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
18
<PAGE> 19
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
</TABLE>
Additional abbreviations may also be used though not in the
above list.
----------------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
| |
| |
(Please print or typewrite name and address including postal zip code of
assignee)
this Note and all rights thereunder hereby irrevocably constituting and
appointing
Attorney
to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated:
Notice: The signature(s) on this
Assignment must correspond with the
name(s) as written upon the face of
this Note in every particular, without
alteration or enlargement or any change
whatsoever.
19
<PAGE> 20
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Issuer to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office in the Borough of Manhattan, The City of New York, currently
located at , not more than 60 nor less than 30 calendar days prior to the
Repayment Date, this Note with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or other
integral multiple of an Authorized Denomination) (provided that any remaining
principal amount shall be at least U.S.$1,000 or the minimum Authorized
Denomination) which the Holder elects to have repaid and specify the
denomination or denominations (which shall be U.S.$1,000 or the minimum
Authorized Denomination) of the Notes to be issued to the Holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $
Notice: The signature(s) on this Option
Date: to Elect Repayment must correspond with
the name(s) as written upon the face of
this Note in every particular, without
alteration or enlargement or any change
whatsoever.
20
<PAGE> 1
Shea & Gardner
1800 Massachusetts Avenue, N.W.
Washington, D.C. 20036
January 7, 2000
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"). This opinion supplements, with
respect to the Debt Securities, our opinion dated December 21, 1999.
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.
Based the foregoing, and assuming that the issuance and sale of the Debt
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) in accordance with the applicable indenture referred to in the Registration
Statement, we are of the opinion that 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.
<PAGE> 2
National Consumer Cooperative Bank
January 7, 2000
Page 2
We consent to the filing of this opinion as an exhibit to the Registration
Statement or a current report on Form 8-K 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
